Petition for Writ of Certiorari — Carolyn Barnes, Petitioner v. United States, et al.

Supreme Court briefSep 18, 2020

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NO.

IN THE

SUPREME COURT OF THE UNITED STATES

CAROLYN BARNES, and Children, Plaintiff-Appellant

UNITED STATES OF AMERICA; U.S. CENSUS BUREAU; FEDERAL

BUREAU OF INVESTIGATION; U.S. DEPARTMENT OF COMMERCE;

U.S. DEPARTMENT OF JUSTICE; ET AL., Defendants-Appellees

ON PETITION FOR WRIT OF CERTIORARIA TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

CASE NO. 19-50925

On Appeal from the

United States District Court

For the Western District of Texas

No. 1-18-CV-952

Earl Leroy Yeakel, III

PETITION FOR WRIT OF CERTIORARI

Carolyn Barnes, et al,

Appellant

419 Indian Trail

Leander, Texas 78641

512-817-8014

Barnes.legalguidance@gmail.com

QUESTIONS PRESENTED

Whether it violates due process to ignore a Motion to Recuse and apply

the wrong standard of review.

Whether the extended preemptive “review” or “screening” process and

summary disposal of claims is a delegated authority within the Constitution,

or “required” by statute, or authorized by law; or whether it is merely a

judicial subterfuge to discriminate against a targeted group of litigants or

class of claims in violation of the United States Constitution and laws of this

Republic?

Whether juridical bills of pains and penalties imposed in an ex post

facto manner without due process may be utilized under our Constitution to

retaliate against and punish a person who has done nothing more than

exercise a fundamental right?

PARTIES TO THE PROCEEDING

The undersigned counsel of record certifies that the following listed persons

and entities as described in the fourth sentence of Rule 28.2.1 have an

interest in the outcome of this case. These representations are made in order

that the judges of this court may evaluate possible disqualification or recusal.

CAROLYN BARNES and her children represented by CAROLYN

BARNES, J.D., Ph.D., 419 Indian Trail, Leander, Texas 78641, email to

barnes.legalguidance@gmail.com.

Defendant, THE UNITED STATES OF AMERICA, John F. Bash, the

U.S. Attorney for the Western District, 601 NW Loop 410, Suite 600, San

Antonio, Texas 78216; William Barr, Office of the Attorney General, U.S.

Department of Justice, 950 Pennsylvania Avenue, NW, Washington, DC

20530-0001; Administrative Office of the United States Courts, Office of the

General Counsel, 1 Columbus Circle, Ste. 7-290, Northeast, Washington D.C.

20544.

Defendant, U.S. CENSUS BUREAU, (hereinafter referred to as

“CENSUS”), U.S. Census Bureau, 4600 Silver Hill Road, Suitland, MD

20746.

Defendant, U.S. DEPARTMENT OF COMMERCE, (hereinafter

referred to as “COMMERCE”), U.S. Department of Commerce, 1401

Constitution Ave., NW, Washington, D.C. 20230; Peggy Gustafson, Inspector

General, 14th and Constitution Avenue, N.W., HCHB 7898-C, Washington,

D.C. 20230.

Defendant, the FEDERAL BUREAU OF INVESTIGATION,

(hereinafter referred to as “FBI”), FBI Headquarters, 935 Pennsylvania

Avenue, NW, Washington, D.C. 20535-001.

Defendant, U.S. DEPARTMENT OF JUSTICE, (hereinafter referred to

as “DOJ”), William Barr, Office of the Attorney General, U.S. Department of

Justice, 950 Pennsylvania Avenue, NW, Washington, DC 20530-0001;

Michael E. Horowitz, Inspector General, 950 Pennsylvania Avenue, N.W.,

Suite 4760, Washington, D.C. 20530.

Defendant, U.S. ATTORNEYS OFFICE, (hereinafter referred to as

“U.S. ATTORNEYS”), John F. Bash, the U.S. Attorney for the Western

District, 601 NW Loop 410, Suite 600, San Antonio, Texas 78216.' Executive

Office for the U.S. Attorneys, U.S. Department of Justice, 950 Pennsylvania

Avenue, NW, Room 2242, Washington, DC 20530-0001.

Defendant, UNITED STATES COURT SYSTEM, U.S. DISTRICT

COURT FOR THE WESTERN DISTRICT AUSTIN DIVISION, 5™ CIRCUIT

COURT OF APPEALS, and U.S. MARSHALS, (hereinafter referred to as the

“ENTERPRISE”), United States Senate Committee on the Judiciary, 224

Dirksen Senate Office Building, Washington,

D.C.

20510-6050;

Administrative Office of the United States Courts, Office of the General

Counsel, 1 Columbus Circle, Ste. 7-290, Northeast, Washington D.C. 20544.

Defendant, TRAVIS COUNTY, TRAVIS COUNTY SHERIFF’S

DEPARTMENT, TRAVIS COUNTY PRETRIAL SERVICES, and TRAVIS

COUNTY ATTORNEYS OFFICE, (hereinafter referred to collectively as the

“CABAL”), Travis County Attorney’s Office, 314 11th St W, Austin, TX 78701;

Travis County Judge Sarah Eckhardt, Travis County Commissioner’s Court,

700 Lavaca, Suite 2.300, Austin, TX 78701.* Travis County Probation Office,

Blackwell-Thurman Criminal Justice Center, 509 W. 11th St., Room 2.900,

Austin, TX 78701.

10. Defendant, WILLIAMSON COUNTY, WILLIAMSON COUNTY

SHERIFF’S DEPARTMENT, WILLIAMSON COUNTY ATTORNEYS

OFFICE, WILLIAMSON COUNTY DISTRICT ATTORNEYS OFFICE, and

WILLIAMSON COUNTY PROBATION DEPARTMENT, (hereinafter

referred to collectively as the “CARTEL”), Sheriff Robert Chody, (successor to

Boutwell, Richards, Maspero, Elliot, Wilson,-and Wilson), Williamson County

Sheriffs Department, 508 Rock Street, Georgetown, Texas 78626; Dan A.

Gattis, (successor to John Doerfler and currently on suspension for official

oppression), County Judge, Williamson County Commissioner’s Court, 710 S.

Main Street, Ste. 101, Georgetown, TX 78626; Shawn Dick, (successor to a

legacy of corruption in Ed Walsh, Mike Davis, Ken Anderson, John Bradley,

Robert McCabe, and Jana Duty), Williamson County District Attorney’s

Office, Williamson County Justice Center, 405 M.L.K. Street, Suite 265,

Georgetown, TX 78626; DEE HOBBS, (partner-in-crime with DALE RYE and

MELISSA HIGHTOWER, and successor to Jana Duty and Eugene Taylor)

Williamson County Attorney’s Office, Williamson County Justice Center, 405

M.L.K., Suite 229, Georgetown, Texas 78626.

11. Defendant, HAMILTON COUNTY, HAMILTON COUNTY SHERIFF’S

DEPARTMENT, HAMILTON COUNTY DISTRICT ATTORNEYS OFFICE,

B.J. SHEPPARD, KEITH WOODLEY, JUDSON WOODLEY, and GEORGE

PHILIP ROBERTSON, (hereinafter referred to collectively as the “MKS” for

“MISOGYNOUS KLAN SYNDICATE”), PHIL ROBERTSON, 110 S. Main,

Meridian, Texas 76665; B.J. SHEPHERD, 15460 E. FM 219, Hico, Texas

76457; KEITH and JUDSON WOODLEY, 306 N. Austin Street, Comanche,

Texas 76442, 707 Center Avenue, Brownwood, Texas 76801; HAMILTON

COUNTY SHERIFFS DEPARTMENT, 1108 S. Rice, Hamilton, Texas 76531.

12. Defendant, STATE OF TEXAS, DEPARTMENT OF STATE HEALTH

SERVICES, TEXAS DEPARTMENT OF MENTAL HEALTH AND MENTAL

RETARDATION, ADULT PROTECTIVE SERVICES, NORTH TEXAS

STATE HOSPITAL; TEXAS ATTORNEY GENERAL, THIRD COURT OF

APPEALS, SIXTH COURT OF APPEALS, TENTH COURT OF APPEALS,

SUPREME COURT OF TEXAS, TEXAS COURT OF CRIMINAL APPEALS,

STATE BAR OF TEXAS OCDC, CFLD, and BODA (hereinafter referred to as

“TEXAS” collectively), Secretary of State, Rolando B. Pablos, Capitol

Building, 1100 Congress, Room IE-8, Austin, Texas 78701, James E. Rudder

Building, 1019 Brazos, 4th Floor, Austin, Texas 78701; Texas Attorney

General Ken Paxton, Agency #: 302209 West 14th St., P.O. Box 12548,

Austin, Texas 78711*2548; Chief Justice, Nathan L. Hecht, Supreme Court of

Texas, Supreme Court Building, 201 W. 14th Street, Room 104, Austin, Texas

78701; Chief Justice, Jeff Rose, Third Court of Appeals, Price Daniel Sr.

Building, 209 West 14th Street, Room 101, Austin, Texas 78701; Chief

Justice, Sharon Keller, Court of Criminal Appeals, Supreme Court Building,

201 West 14th Street, Room 106, Austin, Texas 78701; Chief Justice, Josh R.

Morriss, III, Sixth Court of Appeals, 100 N. State Line Avenue, Ste. 20,

Texarkana, Texas 75501; Chief Justice, Tom Gray, Tenth Court of Appeals,

501 Washington Avenue, Rm. 415, Waco, Texas 76701; John William

Hellerstedt, MD, Commissioner Texas Department of State Health Services,

1100 West 49th Street, Austin, Texas 78756*3199; TDMHMR, Central Office,

Office of Consumer Services & Rights Protection, P.O. Box 12668, Austin,

Texas 78711*2668; Director of Adult Protective Services, State Office, Mail

Code E*561, P.O. Box 149030, Austin, TX 78714*9030; Chief Disciplinary

Counsel, State Bar of Texas OCDC, 1414 Colorado Street, Austin,

Texas

78701; Executive Director of BODA, Christine E. McKeeman, P.O. Box

12426, Austin, Texas 78711; CFLD, State Bar,of Texas, 1414Colorado Street,

Austin, Texas 78701

/ rV „

Carolyn Barnes

419 Indian Trail

Leander, Texas 78641

(512) 817*8014

TABLE OF CONTENTS

QUESTIONS PRESENTED.................................................

PARTIES TO THE PROCEEDING.....................................

TABLE OF CONTENTS........................................................

TABLE OF CITED AUTHORITIES...................................

PETITION FOR WRIT OF CERTIORARI.........................

OPINIONS BELOW...............................................................

JURISDICTIONAL STATEMENT......................................

CONSTITUTIONAL AND STATUTORY PROVISIONS

STATEMENT OF THE CASE........... .................... .............

REASONS TO GRANT REVIEW.........................................

ARGUMENT.............................................................................

Whether it violates due process to ignore a Motion to Recuse and apply the

wrong standard of review.................................... .................................

Whether the extended preemptive “review” or “screening'’ process and

summary disposal of claims is a delegated authority within the

Constitution, or “required” by statute, or authorized by law; or whether it is

merely a judicial subterfuge to discriminate against a targeted group of

litigants or class of claims in violation of the United States Constitution

and laws of this Republic?......................................................................... 31

Whether juridical bills of pains and penalties imposed in an ex post facto

manner without due process may be utilized under our Constitution to

retaliate against and punish a person who has done nothing more than

exercise a fundamental right?................................................................... 48

CONCLUSION

REQUEST FOR RELIEF..............

... 56

APPENDICES.....................................

CERTIFICATE OF COMPLIANCE

TABLE OF CITED AUTHORITIES

Cases

A.L.A. SchechterPoultry Corp., 295 U.S. 495 (1935)..........................

Abbott Laboratories v. Gardner, 387 U. S. 136, 140 (1967)................

,44

ACORN v. United States, 692 F. Supp. 2d 260, 270 (E.D.N.Y. 2010)

ACORN v. United States, 692 F. Supp. 2d 260, 274 n. 14 (E.D.N.Y. 2010)....53

ACORNv.UnitedStates, 618F.3d 125, 135-36 (2d Cir. 2010)...................... .49

Adkinsv. E. I. DuPont de Nemours Co., 335 U.S. 331, 342-343 (1948)....... 31

Allen v. Wright, 468 U. S. 737, 751 (1984)...................................................... .24

American Power & Light Co. v. SEC, 329 U.S. 90, 329 U.S. 105 (1946)...... 38

Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d

(1986)............................................................................................................... .43

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240 (2002)........................ 49

Ashwander v. TVA, 297 U.S. 288, 300-11 (1936)............................................ .22

Bates v. Little Rock, 361 U.S. 516, 524 (1960)............................................... 30

Bazrowx v. Scott, 136 F.2d 1053 (5th Cir. 1998).............................................. 30

Biggs v. Meadows, 66 F.3d 56, 59 (4th Cir. 1995)........................................... .29

Board ofEducation v. Barnette, 319 U.S. 624 (1943).................................... .22

Bohannan v. Doe, 527 F. App’x 283 (5th Cir. 2013)....................................... ,46

Bonner v. City ofPrichard, 661 F.2d 1206, 1212 (llth Cir. 1981)................. .23

Bounds v. Smith, 430 U.S. 817, 825 (1977)..................................................... 36

Bounds v. Smith, 430 U.S. 817, 825, 828 (1977)............................................. 23

Bounds v. Smith, 430 U.S. 817, 826 (1977)...................................................... .43

Bounds v. Smith, 430 U.S. 817, 827 (1977)...................................................... .35

Bowen v. Michigan Academy ofFamily Physicians, 476 U. S. 667, 670-673

(1986)................................................................................................................ .44

Brower v. Inyo County, 489 U.S. 593 (1989).................................................... 37

Brown v. Allen, 344 U.S. 443, 502 (1953)........................................................ ,23

Burns v. Ohio, 360 U. S. 252, 360 U. S. 257 (1959)......................................... 36

Burns v. Ohio, 360 U.S. 252, 257-258 (1959)................................................... 31

Burris v. State Department ofPublic Welfare ofS. G, 491 F.2d 762 (4 Cir.

1974)................................................................................................................. .35

Byars v. United States, 273 U.S. 28, 273 U.S. 33 (1927)............................... .21

Calder v. Bull, 3 U.S. (20 Wall.) 386, 388 (1789)............................................. .22

California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972),49

Cantwell v. Connecticut, 310 U.S. 296, 308 (1940)............................................ 33

Canty v. City ofRichmond, Va., Police Dept., 383 F.Supp. 1396

(E.D.Va.1974), affirmed, 526 F.2d 587 (4 Cir. 1975), cert, denied, 423 U.S.

1062, 96 S.Ct. 802, 46 L.Ed.2d 654 (1976)....................................................... .35

Caperton v. A. T. Massey Coal Co., 556 U. S. 868 (2009)...................................28

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)................................... ,25

Caperton v. A.T. Massey Coal Company, Inc., 129 S. Ct. 2252 (2009)............ .24

Carlson v. Green, 446 U.S. 14 (1980).................................................................. 35

Carter v. Carter Coal Co., 289 U.S. 238 (1936)......

Cay v. Estelle, 789 F.2d 318, 324 (5th Cir. 1986)....

Chaffin v. Stynchcombe, 412 U.S. 17, 26-27 (1973)

City of Chicago v. Morales, 527 U.S. 41 (1999).......

City of Coleman v. Rhone, 222 S.W.2d 646, 650 (Tex.Civ.App.-Eastland 1949,

writ refd)........................................................................................................ 36

Coalition for the Abolition ofMarijuana v. City ofAtlanta, 219 F.3d 1301,

1316 (11th Cir. 2000)...................................................................................... 29

Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 515 (11th Cir. 1991) ..40

Colten v. Kentucky, 407 U. S. 104 (1972)

Colten v. Kentucky, 407 U.S. 104 (1972).

Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex. 1998) ....51

Connally v. General Constr. Co., 269 U. S. 385, 391 (1926)....................

Consol. Edison Co. ofN.Y. v. Pataki, 292 F. 3d 338, 350 (2d. Cir. 2002)

Coppedgev. United States, 369 U.S. 438, 447 (1962)..............................

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442 (1987)....

Cruz v. Beto, 405 U.S. 319, 321 (1972)......................................................

.23

Cruz v. Hauck, 475 F.2d 475, 476 (5th Cir. 1973).....................................

.23

Cummings v. Missouri, 71 U.S. (4 Wall.) 277 (1867)...............................

Davis v. Laning, 19 S.W. 846, 846 (Tex. 1892)..........................................

.48

Davis v. Passman, 442 U.S. 228 (1979).....................................................

De Jong v. Oregon, 299 U.S. 353 (1937).....................................................

.22

Desist v. United States, 394 U. S. 244, 256 (1969)...................................

Earle v. McVeigh, 91 US 503, 23 L Ed 398 (1875)....................................

.46

Elliott v. Lessee ofPiersol, 1 Pet. 328, 26 U.S. 328 (1828)......................

Ex parte Bakehte Corp'n,, 279 U.S. 438, 49 S.Ct. 411, 414 (1929).........

Ex Parte Garland, 71 U.S. (4 Wall.) 333 (1867)........................................

Ex parte Hull, 312 U. S. 546, 549 (1941)...................................................

Fay v. Noia, 372 U.S. 391, 402 (1963)........................................................

.23

FCC v. Fox, 567 U.S.

., No. 10-1293, slip op. (2012) 613 F. 3d 317 (first

case) and 404 Fed. Appx. 530 (second case), vacated and remanded.......... ,33

Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (en banc)....... 33

Gardner v. California, 393 U. S. 367, 393 U. S. 369-370 (1969)..................... .43

Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962).............................................. 28

Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978)................................................ .35

Gordon v. United States, 117 U. S. 697 (1865)................................................. 38

Gordon v. United States, 69 U.S. 2 Wall. 561 561 (1864)................................ 38

Grayned v. City ofRockford, 408 U.S. 104,108, 92 S. Ct. 2294, 33 L. Ed. 2d

222 (1972)........................................................................................................... 51

Grayned v. City ofRockford, 408 U.S. 104,108-09 (1972).............................. 51

Griffin v. Illinois, 351 U. S. 12, 20 (1956).......................................................... 36

Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985)............................ . .23

Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965)..................................... . .22

Gutierrez de Martinez v. DEA, 111 F.3d 1148, 1155 (4th Cir. 1997).............. ,27

Haines v. Kerner, 404 U.S. 519, 520 (1972)..................................................... .35

Herring v. United States, 129 S.Ct. 695, 705 (2009)....................................... 16

Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir.

1998)................................. ................................................................................ 29

Houston & Tex. Cent. R.R. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648,

653-54(1905).................................................................................................... 36

Hunt v. Pliler, 384 F.3d 1118, 1123 (9th Cir. 2004)........................................ 41

In re McDonald, 489 U.S. 180, 186-87 (1989).................................................. .41

In re Murchison, 349 U. S. 133 -137 (1955)..................................................... .28

In re Murchison, 349 U. S. 133, 136 (1955)...................................................... 26

J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348,

351 (1928)....................................................................................................

Jamisonw. Wiley, 14 F.3d 222 (4th Cir. 1994)...........................................

Johnson v. Anderson, 370 F. Supp. 1373, 1383 (D. Del. 1974).................

.23

Johnson v. Avery, 393 U. S. 483 (1969).......................................................

.35

Johnson v. Avery, 393 U.S. 483, 485 (1969)............................................... .23,35

Johnson v. State, — So. 3d —, 2012 WL 16692 at *5 (Fla. Jan. 5, 2012).

.29

Katz v. United States, 389 U.S. 347 (1967)................................................

.49

Kenner v. C.I.R., 387 F.3d 689(1968)..........................................................

.42

Kolender v. Lawson, 461 U.S. 352, 358 (1983)...........................................

Lawton v. Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 38 L. Ed. 385 (1894)

LeHigh Valley Coal Co. v. Yensavage, 218 F. 547, 552 (2d Cir. 1914).....

Lewis v. Casey, 518 U.S. 343, 353 (1996)...................................................

.40

Loan Ass’n v. Topeka, 87 U.S. (20 Wall.) 655, 662*63 (1875)....................

,22

Lowrey v. Texas A &MUniv. Sys., 117 F.3d 242, 246-47 (5th Cir.1997)

Lunde v. Helms, 898 F.2d 1343, 1345 (8th Cir. 1990)................................

.42

Marbury v. Madison, 1 Cranch 137, 174 (1803).........................................

.22

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)...................................

Marbury v. Madison, 5 U.S. (l Cranch) 137, 177 (1803)...........................

.24

Marbury v. Madison, 5 U.S. 137, 176, 1 Cranch 137, 2 L. Ed. 60 (1803).

Martin v. Struthers, 319 U.S. 141, 143 (1943)............................................

.22

Martinez v. Lamagno, 515 U.S. 417 (1995)................................................

.26

Martinez v. Lamagno, 515 U.S. 417, 424-25 (1995)...................................

.45

Martinez v. Lamagno, 515 U.S. 417, 425 (1995)........................................

Martinez v. Lamagno, 515 U.S. 417, 426-27, 433-434, 436-37 (1995)......

.45

Martinez v. Lamagno, 515 U.S. 417, 428*29 (1995)..................................

,26

Mathews v. Eldridge, 424 U. S. 319, 424 U. S. 335 (1976).......................

.42

McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991)................................

.41

McLaughlin v. Florida, 379 U.S. 184 (1964)...............................................

Merritt v. Faulkner, 697 F.2d 761, 763 (7th Cir.) cert, denied, 464 U.S. 986

(1983)................................................................................................................. ,23

Meyer v. Nebraska, 262 U.S. 390 (1923)..................................................... .22

Meyer v. Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 67 L. Ed. 1042 (1923) ..36

Missouri, Kan. & Tex. R. Co. v. Rockwall County Levee Improvement Dist.

No. 3, 117 Tex. 34, 297 S.W. 206, 212 (1927)................................................. 36

Mistretta v. United States, 488 U.S. 361 (1989).............................................. 38

Moore v. McDonald, 30 F.3d 616, 620 (5th Cir. 1994)...................................... 46

Mugler v. Kansas, 123 U.S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205 (1887)...... 35

Murphy v. Kellar, 950 F.2d 290 (5th Cir. 1992)................................................ .41

Musser v. Utah, 333 U.S. 95, 97 (1948)............................................................. 33

Myers v. United States, 272 U.S. 52, 151 (1926)............................................. .22

NAACP v. Alabama, 357 U.S. 449, 462 (1958)................................................. .22

Neitzke v. Williams, 490 U.S. 319 (1989).......................................................... 40

Neitzke v. Williams, 490 U.S. 319, 320 (1989).................................................. 37

Neitzke v. Williams, 490 U.S. 319, 324 (1989).................................................. 31

Neitzke v. Williams, 490 U.S. 319, 330 (1989).................................................. .35

Nguyen v. United States, 539 U.S. 69 (2003).................................................... 28

North Carolina v. Pearce, 395 U. S. 711, (1969).............................................. 39

North Carolina v. Pearce, 395 U. S. 711, 726 (1969)........................................ 53

ODonoghue v. United States, 289 U.S. 516, 530 (1933).................................. 38

Old Wayne Mut. LifeAss'n v. McDonough, 204 U.S. 8 (1907)........................ 29

Olmstead v. United States, 277 U.S. 438, 478 (1928)...................................... .49

Owen v. City ofIndependence, 445 U.S. 622, 651 (1980)................................. .35

Palko v. Connecticut, 302 U.S. 319, 325 (1937)................................................ .22

Palmer v. City ofEuclid, 402 U.S. 544 (1971)................................................... .33

Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)........................... ............. 38

Papachristou v. City ofJacksonville, 405 U.S. 156 (1972)............................... 33

Pettit v. Penn., La.App., 180 So.2d 66, 69......................................................... 51

Pierce v. Carskadon, 83 U.S. (16 Wall.) 234 (1873).......................................... 52

Pierce v. Society ofSisters, 268 U.S. 510 (1925).............................................. .22

Poe v. Ullman, 367 U.S. 497, 517 (1961)........................................................... 49

Pollar v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486,

491 (1962).......................................................................................................... .43

Posadas v. National City Bank, 296 U.S. 497, 503 (1936)............................... .33

Powell v. Alabama, 287 U.S. 45, 67 (1932)........................................................ ,49

Puckett v. United States, 556 U. S. 129 (2009)................................................. .25

Re Sanborn, 148 U. S. 222, 13 S. Ct. 577, 37 L. Ed. 429 (1893)..................... 38

Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80 & n. 15 (1980)...... .22

Rippo v. Baker, 580 US _, 137 S.Ct. 905 (2017)............................................... 28

Rivera v. Illinois, 556 U.S. 148, 161 (2009)

Ross v. Moffitt, 417 U.S. 600, 616 (1974)....

.23,35

Rusk v. Cort, 369 U.S. 367, 379-380 (1962)

.45

Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 84647 (1984)

.49

Selective Serv. Sys. V. Minn. Pub. Interest Research Grp., 468 U.S. 841, 851

(1984)

Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 856

n.15 (1984)....................................................................................................

Shelton v. Tucker, 364 U.S. 479, 488 (i960)................................................

Skinner v. Oklahoma, 316 U.S. 535, 541, (1942).........................................

Smith v. Bennett, 365 U. S. 708 (1961)......................................................... 36

Smith v. Goguen, 415 U.S. 566 (1974)..........................................................

Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)......................................

Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526 (1958)......................

Spencerv. Lapsley, 20 How. 264, 266 (1858)...............................................

,26

Tennessee Electric Power Co., v. TVA, 306 U.S. 118, 143-44(1939).........

,22

Thompson v. Whitman, 85 U.S. 457 (1873)..................................................

Thornhill v. Alabama, 310 U.S. 88 (1940).................................................... ,33

Turney v. Ohio, 273 U. S. 510 (1927).............................................................

.24

Turney v. Ohio, 273 U.S. 510 (1927).............................................................. ,25

U.S. v. Desfr, 257 F.3d 1233, 1236(llth Cir. 2001).....................................

Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982).............................. .46

United Public Workers v. Mitchell, 330 U.S. 75, 94-95 (1947)................... .22

United States exrel. Marcial v. Fay, 247 F.2d 662, 669 (2d Cir. 1957)(en

banc) cert, denied, 355 U.S. 915 (1958)......................................................

United States v. Batti, 631 F.3d 371, 375 (6th Cir. 2011)...........................

United States v. Brown, 381 U.S. 437, 442 (1965).......................................

United States v. Brown, 381 U.S. 437, 450 (1965).......................................

United States v. Brown, 381 U.S. 437, 458 (1965)....................................... .21

United States v. Brown, 639 F.3d 735, 737 (6th Cir. 2011)........................

.29

United States v. Calandra, 414 U.S. 338, 357 (1974)..................................

United States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J, dissenting))

United States v. Fausto, 484 U.S. 439, 455 (1988)............

.35

United States v. Jackson, 390 U. S. 570 (1968)..................

United States v. Klein, 13 Wall. 128, 146 (1872)...............

.27,38

United States v. Klein, 80 U.S. (13 Wall.) 128, 142 (1871)

United States v. Klein, 80 U.S. (13 Wall.) 128, 144-145, 20 L. Ed. 519 (1871)

United States v. Lovett, 325 U.S. 303, 316 (1946).........................

United States v. National Dairy Corp., 372 U.S. 29 (1963)..........

United States v. Nourse, 34 U.S. 8, 28*29, 9 Pet. 8 (1835)...........

.45

United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989)

United States v. White Mountain Apache Tribe, 537 U.S. 465, 473 (2003)....33

United States v. Williams, 553 U. S. 285, 304 (2008)

Vallely v. Northern Fire & Marine Ins. Co., 254 U.S. 348, 41 S.Ct. 116 (1920)

.29

Village ofHoffman Estates v. The Flipside, 455 U.S. 489, 494—95 (1982)

Village ofHoffman Estates v. The Flipside, 455 U.S. 489, 498 (1982).....

Wayman v. Southard, 23 U.S. (10 Wheaton) 1 (1825)................................

Weeks v. United States, 232 U.S. 383, 391-392 394 (1914).......................

West Virginia State Board ofEducation v. Barnette, 319 U.S. 624, 638 (1943)

.48

Wieman v. Updegraff, 344 U.S. 183, 195 (1952)..........................

.22

Williams v. United States, 289 U.S. 553, 555 (1933)...................

Windsor v. McVeigh, 93 U.S. 274 (1876).......................................

.25

Wingo v. Wedding, 418 U.S. 461 (1974)........................................

.28

Winters v. New York, 333 U.S. 507, 509-10 (1948).....................

Winters v. New York, 333 U.S. 507, 515-16 (1948).....................

Wolff v. McDonnell, 418 U. S. 539, 577- 580 (1974)....................

,35

Wolff v. McDonnell, 418 U.S. 539, 555 (1974)...............................

.23

Wolff v. McDonnell, 418 U.S. 539, 579 (1974)...............................

.35

Zemel v. Rusk, 381 U.S. 1, 503-504 (1965)...................................

Statutes

§ 1915...............................................................................................

§ 1915 (d).........................................................................................

.41

§1915A............................................................................................

36, 55

18 U.S.C. § 1963, etseq...................................................................

,46

18 U.S.C. § 454................................................................................

.43

28 U.S.C. § 144................................................................................

.25

28 U.S.C. § 1915(b)(4) and (d)........................................................

,42

28 U.S.C. § 1915(d)..........................................................................

28 U.S.C. § 1915A............................................................................

passim

28 U.S.C. § 455 (a), (b) (l)...............................................................

.25

28 U.S.C. § 631, etseq....................................................................

18,19, 57

28 U.S.C. §1915A.............................................................................

28 U.S.C.A. § 144 (2016).................................................................

.24

,24

28 U.S.C.A. § 455 (2016).................................................................

.47

42 U.S.C. § 1981, etseq...................................................................

42 U.S.C. § 1983...............................................................................

Chapter 110 TEX. CIV. PRAC. & REM. CODE...........................

,48

Civil Rights Act of 1871..................................................................

,35

Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq.

.48

Other Authorities

155 CONG. REC. S10,221 (daily ed. Oct. 7, 2009).......................

Akhil Reed Amar, Attainder and Amendment 2- Romer’s Rightness, 95

MICH. L. REV. 203, 210 (1996)................................................................

.40

American Convention on Human Rights art. 25(l), July 18, 1978, 1144

U.N.T.S. 128...............................................................................................

.32

Barkett, J., “The Tyranny of Labels” 33 Suffolk Univ. L. Rev. 749 (2005) 40,54

Black’s Law Dictionary, 6th Edition, page 500.............................................. 51

Brief for Brennan Center for Justice at NYU School of Law and Justice at

Stake as Amici Curiae Supporting Petitioner, Williams v. Pennsylvania,

136 S. Ct. 1899 (2016) No. 15*5040, 2015 WL 8138320.............................. ,25

Brief of the American Bar Association as Amicus Curiae in Support of

Petitioners, Caperton v. A.T. Massey Coal Co., 556 U.S. 868, (2009) (No. OS,25

22), 2009 WL 45978.....................................................

,22

C. Black, Decision According to Law (New York- 1981)

Catz & Guyer, 31 RUTGERS L. REV. at 656 (citing 11 Hen. 7, ch. 12 (1494)31

Catz & Guyer, Federal In Forma Pauperis Litigation' In Search ofJudicial

Standards, 31 RUTGERS L. REV. 655, 657 (1978)........................................ 39

CHARLES GARDNER GEYH, FED. JUDICIAL CTR., JUDICIAL

DISQUALIFICATION: AN ANALYSIS OF FEDERAL LAW 12-13 (2d ed.

2010).................................................................................................................... 24

Charles Gardner Geyh, Why Judicial Disqualification Matters. Again., 30

REV. OF LIT. 671, 677-8 (2011)...................................................................... 25

Charles Geyh, Myles Lynk, Robert S. Peck & Hon. Toni Clark, The State of

Recusal Reform, 18 N.Y.U. J. LEGIS. & PUB. POL’Y 515, 517 (2015)........ 24

Comment, The Supreme Court’s Bill ofAttainder Doctrine- A Need for

Clarification, 54 CALIF. L. REV. 212, 218*32 (1966)..................................... 52

CONG. GLOBE, 42ND CONG., 1ST SESS. 800............................................... 34

CONG. GLOBE, 42ND CONG., 1ST SESS. APP’X 68 (1871).......................... 34

Dmitry Bam, Recusal Failure, 18 N.Y.U. J. LEGIS. & PUB. POL’Y 631, 644,

,25

Federal Judicial Center, Judicial Disqualification: An Analysis of Federal

Law (2d. ed.) at pp. 26-37............................................................................... .25

Frost, Keeping Up Appearances: A Process-Oriented Approach to Judicial

Recusal, 53 U. KAN. L. REV. 531, 561-62 (2005)........................................ .27

Gary Thomas, Sacred Pathways (Grand Rapids: Zondervan 2000)............. .48

H.R. Rep. No. 100-700 at 5, reprinted in 1988 U.S.C.C.A.N. 5945, 5949..... 31

H.R. Rep. No. 1079, 52d Cong., 1st Sess., 1 (1892)......................................... ,31

H.R. REP. No. 1079, 52nd Cong., 1st Sess. (1892).......................................... 39

International Convention on the Elimination of All Forms of Discrimination,

.32

G.A. Res. 2106, at art. 6, U.N. Doc. A/6014 (Dec. 12, 1965)

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI),

at art. 2, U.N. Doc. A/6316 (Dec. 16, 1966).................................................... 32

J. Ely, Democracy and Distrust—A Theory of Judicial Review (Cambridge:

1980), 34-41...................................................................................................... ,22

Joseph M. McLaughlin, An Extension of the Right ofAccess'- The Pro Se

Litigant's Right to Notification of the Requirements of the Summary

Judgment Rule, 55 Fordham L. Rev. 1109, 1128 (1987).............................. 35

Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind. L. J. 309

(1936)

MAGNA CARTA § 40, quoted in Catz & Guyer, 31 RUTGERS L. REV. at 656

(quoting J.C. Holt trans. 1965)

Menendez, Matthew and Samuels, Dorothy, Judicial Recusal Reform- Toward

Independent Consideration of Disqualification, Brennan Center for Justice

.26

at NYU School of Law

NOTES OF ADVISORY COMMITTEE ON RULES—1993 AMENDMENT for

Rule 1..........................................................................................................

,42

Paul R. Verkuil, Separation ofPowers, the Rule ofLaw and the Idea of

Independence, 30 WM. & MARY L. REV. 301, 447 (1989).....................

,49

Press Release, Justice at Stake, Poll- Huge Majority Wants Firewall Between

' Judges, Election Backers, Justice at Stake (Feb. 22, 2009).......................... ,25

Redlich, Are There “Certain Rights...Retained by the People”? 37 N.Y.U.L.

Rev. 787 (1962).................................................................................................. 36

RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND

DISQUALIFICATION OF JUDGES § 1.2, at 5 (2d ed. 2007)...................... ,25

RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND

DISQUALIFICATION OF JUDGES § 1.4 at 9 (2d ed. 2007)....................... .24

Rick Warren, The Purpose Driven Life (Grand Rapids: Zondervan 2002) 48

THE FEDERALIST NO. 44, at 278*79 (James Madison) (Clinton Rossiter ed.,

2003).................................................................................................

40,49

The Federalist, No. 84 (Cooke ed. 1961) at 578*579 (A. Hamilton)

The Rights Retained by the People: The History and Meaning of the Ninth

Amendment (Randy E. Barnett, ed., 1989)................................................... ,22

Universal Declaration of Human Rights, G.A. Res. 217A, at art. 8, U.N.

GAOR, 3d sess., 1st plen. mtg., U.N. Doc. A/810 (Dec. 12, 1948)................ 32

Rules

Rule 1................................................................................................................ ,42

Rule 3................................................................................................................ .42

Rule 4................................................................................................................ 42

Rule 8................................................................................................................ ,42

Treatises

1 W. Blackstone, Commentaries *91.............................................................. .26

B. Pascal, Thoughts, Letters and Opuscules 182 (O. Wight transl. 1859).. .26

CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL

COURTS § 68 (6th ed. 2002)....................................................................... .46

John Locke, Second Treatise of Civil Government (1690)........................... 38

Publius Syrus, Moral Sayings 51 (D. Lyman transl. 1856)......................... .26

The Federalist No. 10, p. 79 (C. Rossiter ed. 1961)...................................... .26

Regulations

ABA Resol. 105C (2014)................................................. ................................. 27

ABA’s 2014 Resolution 105(C)............................................................................ .27

MODEL CODE OF JUDICIAL CONDUCT Canon 3(0 (AM. BAR ASS’N

2011)............................................................................................................... ,24

Constitutional Provisions

Article III.......................................................................................................... 51

Bill of Attainder Clause.................................................................................. ,49

delegata potestas non potest delegari............................................................ 38

Fifth Amendment’s Due Process Clause........................................................ 50

,47

First Amendment....................

Ninth and Tenth Amendments

Tex. Const. Art. I, § 20............

,48

TEX. CONST. Art. I, § 21.......

.48

TEX. CONST. Art. I, §§ 16, 29.

Tex. Const. Art. I, §§ 3, 3a, 8, 9, 10, 11, 12, 13, 14, 15, 15a, 16, 19, 20, 23, 25,

26, 27, 28, and 29.............................................................................

Tex. Const. Art. I, §§ 3, 3a, 9, 10, 13,15, 16, 19, 20, 27, 28, and 29

.22

Texas Bill of Rights.............................................................................

,21

U.S. Const, amend. I...........................................................................

.48

U.S. Const. Amend. I, IV, V, VII, VIII..............................................

U.S. Const, amend. IV............................................ ...........................

U.S. Const, amend. IX........................................................................

U.S. Const, amend. V..........................................................................

,21

U.S. Const, amend. VII......................................................................

.21

U.S. Const, amend. VIII.....................................................................

.21

U.S. Const, amend. X................... ......................................................

U.S. Const, amends. I, IV, V, VII, VIII, IX, and X............... ............

U.S. Const. Amends. IX and X...........................................................

U.S. CONST. Art III, § 1, and Art. I, § 8...........................................

.48

U.S. CONST. Art. 1, § 10...................................................................

U.S. Const, art. I, § 8.................................................................. .......

,48

U.S. Const. Art. I, § 9, cl. 3........................................................... .....

,48

U.S. Const. Art. I, § 9, cl. 3, cl. 4, cl. 8, and § 10...............................

,23

U.S. Const., Art. 1, § 9, Cl. 3..............................................................

.33

U.S. CONST., Art. VI, cl. 2.................................................................

PETITION FOR WRIT OF CERTIORARI

Congress owes a fiduciary duty to protect the right to petition for the

redress of grievances and ensure fairness within the inferior courts it creates

so that reasonable expectations are not frustrated.1 Congress cannot abdicate

or re-delegate its fiduciary responsibility to attorneys within a partnership in

official lawlessness,2 (hereinafter referred to as “partnership”). If partnership

attorneys are allowed to willfully conflate two statutes3 and expand another

to usurp the power of Congress to regain sovereign control and nullify

unalienable rights,4 then Congress abdicated its fiduciary duty to those who

were the least trusted by the founders of this constitutional republic.

OPINIONS BELOW

Judgment and Order entered on September 17, 2019.5 ROA.915-918.

Fifth Circuit per curiam panel AFFIRMED on its Summary Calendar

on April 9, 2020.6

1 U.S. CONST. Art III, § 1, and Art. I, § 8.

2 Justice Brennan said that judicial integrity meant judges should “avoid the taint of

partnership in official lawlessness.” United States v. Calandra, 414 U.S. 338, 357 (1974)

(Brennan, J, dissenting)). Justice Brennan argued that procedural rules are designed to

achieve the goal of “enabling the judiciary to avoid the taint of partnership in official

lawlessness and of assuring the people—all potential victims of unlawful government

conduct—that the government would not profit from its lawless behavior, thus minimizing

the risk of seriously undermining popular trust in government.” Courts cannot “affirm by

judicial decision a manifest neglect, if not an open defiance of the prohibitions of the

Constitution, intended for the protection of the people against such unauthorized action.”

Weeks v. United States, 232 U.S. 383, 391-392 394 (1914). The phrase was also used by

Justice Ginsburg. See Herring v. United States, 129 S.Ct. 695, 705 (2009) (quoting United

States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J., dissenting)).

3 Informa pauperis statute (IFP) with Prison Litigation Reform Act (PLRA)(Appendix B-2).

4 Federal Magistrates Act (FMA) appears in Appendix B-3.

6 Appendix A‘l.

Fifth Circuit per curiam panel DENIED the Petition for Rehearing En

Banc without opinion or en banc consideration on June 22, 2020.7

This Petition was filed within 90 days.

JURISDICTIONAL STATEMENT

The jurisdiction of this Court is invoked under 28 U. S. C. § 1254(1),

and pursuant to Art. Ill, §2 (l); Art. IV, § 2, para, l; Art. IV, § 4; and Art. VI,

para. 2 and 3 of the United States Constitution. Petitioner challenges the

constitutionality of conflating the in forma pauperis statute {IFF) and the

Prison Litigation Reform Act (PLRA)8 to nullify Congressional intent and

impair rights protected by the Constitution. The PLRA bill of attainder is

misapplied to negate IFP protections, which allows attorneys to conceal

crimes and cover-up predatory practices and authoritarian abuses by robbing

the people of their fundamental right to petition. In every tribunal,

Petitioner’s motion to recuse and constitutional challenges were ignored, and

the facts were deemed irrelevant. Jurisdiction exists due to the systemic

fraud, institutional negation of legal capacity, and authoritarian nullification

of rights. These issues are “of tremendous national importance” because

rights are reduced to licenses and people cannot be fairly heard on their

petitions for want of a valid license or a fair forum. Application of the bill of

attainder and imposition of the cruel and unusual bill of pains and penalties

are unconstitutional perse.

6 Appendix A-2.

7 Appendix A-3.

8 IFP and PLRA appear in Appendix B-2.

CONSTITUTIONAL AND STATUTORY PROVISIONS

Appendix B reproduces the federal constitutional and statutory law, 28

U.S.C. § 1915 and 28 U.S.C. § 1915A, 28 U.S.C. § 631, et seq., Fed. R. Proc.

Rule 1, 3, 4, 8, and the Standing Order of the District Courts; and Appendix

C reproduces the pertinent parts of the Texas Constitution, including the bill

of rights, which is integral and foundational to the Texas Constitution.

STATEMENT OF THE CASE

On October 11, 2018, Petitioner filed a sworn application to proceed

IFP. ROA.586-590. Petitioner also filed a sworn Motion to Recuse. ROA. 591607. Subject to the motion to recuse and without waiving same, Petitioner

filed a sworn Original Complaint. ROA.12-585. See especially ROA.51,

ROA.502, ROA.607, and ROA.584. The complaint set out 11 claims.9

Petitioner set out the reason for the recusal; and demonstrated that the law

was clearly established,10 proved the plausibility of the claims, demonstrated

that damages were sustained, and requested a jury trial.11

Access to the court was obstructed and the case was abated indefinitely

without explanation or due process. The clerks refused to file, docket, and

assign a case number or issue summons. The clerk refused to respond to

9 First, ROA. 178-230; Second, RICO ROA.230-309; Third, §§ 1983, 1985 ROA.309-369;

Fourth, ADA ROA.370-381; Fifth, RFRA ROA.381-386J Sixth, Breaches of fiduciary duty,

contract, oath, and Fraud ROA.386-.437; Seventh, ROA.437-443; Eighth, Stolen Claims

under the Texas Constitution and Laws and Fifth Amendment takings ROA.443-454; Ninth,

Continuing Conspiracy and Specific Performance ROA.454-460; Tenth, Declaratory

Judgment and Prospective Injunctive Relief ROA.460-485,' Eleventh, Attorney’s fees and

costs ROA.485-487.

10 See also ROA.504-553.

n ROA.476-477; ROA.487-488; Docket sheet ROA. 10.

requests concerning status of IFPapplication, (ROA.626), and refused to set a

hearing on the motion to recuse.

Magistrates have no authority to enter indefinite injunctions under the

Federal Magistrates Act12 (“FMA”) or violate a local standing order13 and

ignore § 1915 (d).

For over nine months, “[t]he officers of the court” refused to “issue and

serve all process, and perform all duties” equal to official performance in nonIFPcases.14 “[T]he same remedies” were not “available as provided for by law

in other cases.”

The magistrate, Mark Lane (hereinafter referred to as “ML”), and the

Judge, Earl Leroy Yeakel, III (hereinafter referred to as “ELY’) both ignored

the sworn motion to recuse. The case never advanced into a traditional

adversarial posture. See also § 1915 (e) (1).

On July 30, 2019, ML issued R&R without any semblance of due

process, hearing, or opportunity to be heard. ROA.789-796.

ML opined that he was “required” to conduct a “review” under 28

U.S.C. §1915A.15

ML’s Order granting IFP continued the sua sponte injunction in place

and recommended a dismissal of the claims with prejudice and imposition of

civil death penalty to ban Barnes from the courts for life.

12 28 U.S.C. § 631, etseq. Appendix B-3.

13 See Appendix B'5.

14 See Fed. R. Civ. Proc. Rule 4 (a)-(c) (Appendix B“4).

15 28 U.S.C. § 1915A is part of the political agenda resulting in the PLRA, which attorneys

layer over the IFP to nullify rights and achieve a desired political result. Appendix B-2.

By forcing the claims through the oppressive screening sieve of §

1915A, the court circumvented a mandatory hearing on the motion to recuse

and thwarted efforts to obtain a neutral and detached decision-maker.

10.

On August 23, 2019, Appellant filed sworn Objections, which were

never controverted, disputed, or contested. ROA.799-912.

11.

On September 17, 2019, ELY signed the Order and entered final

judgment. ROA.915-918.

12.

The mechanical nullification order accepted and adopted the mere ipse

dixit of ML and ignored all of Petitioner’s sworn pleadings and objections.

13.

In retaliation for seeking redress of grievances, Barnes was outlawed

even though she met none of the criteria set out in § 1915 (g).

14.

Petitioner was enjoined from fifing anything other than a notice of

appeal, which blocked her from fifing a motion for leave to amend, motion to

reconsider, or motion for new trial as “in other cases.”

15.

On October 1, 2019, sworn Notice of Appeal was filed. ROA.975-996.

16.

On October 7, 2019, sworn Amended Notice of Appeal was filed.

ROA.919-972.

17.

On Appeal, Petitioner and her claims were summarily disposed under

the fraudulent claim that Petitioner was raising the constitutional challenges

for the first time on appeal. Even though Petitioner requested en banc

reconsideration, the same panel blocked relief.

REASONS TO GRANT REVIEW

This case involves questions of exceptional importance concerning

fundamental rights and the constitutionality of a statute on its face and as

applied in violation of the First,16 Fourth,17 Fifth,18 Seventh,19 Eighth,20

Ninth,21 and Tenth22 Amendments, the prohibition against bills of attainder,

and the proper standard of review.

Congressional “intent to encourage compliance with the law does not

establish that a statute is merely the legitimate regulation of conduct.”23

There is “unmistakable evidence of punitive intent” in § 1915A, § 1915 (g),

and the “vexatious” branding of outlawry.24

It is unconstitutional per se for partnership attorneys to withhold,

impair, interfere with, or suspend unalienable rights by distortion of

statutes and undermine the legal capacity of citizens as part of a

subterfuge to justify the obstruction of access, exclusion from courts,

16 U.S. Const, amend. I. Appendix B-l.

17 U.S. Const, amend. IV addresses “misuse of power.” Byars v. United States, 273 U.S. 28,

273 U.S. 33 (1927). Appendix B-l.

18 U.S. Const, amend. V. Appendix B-l.

19 U.S. Const, amend. VII. Appendix B-l.

20 U.S. Const, amend. VIII. Appendix B-l.

21 U.S. Const, amend. IX guarantees that the federal courts will not deny, disparage, or

nullify the “forever inviolate” rights retained under Tex. Const. Art. I, §§ 1-29. Appendix B-l.

22 U.S. Const, amend. X reserves all rights not specifically delegated to the federal

government. Appendix B-l.

23 Selective Serv. Sys. V. Minn. Pub. Interest Research Grp., 468 U.S. 841, 851 (1984). See

also United States v. Brown, 381 U.S. 437, 458 (1965). Bills of attainder are often “enacted

for preventive purposes—that is, the legislature made a judgment, undoubtedly based

largely on past acts and associations...that a given person or group was likely to cause

trouble...and therefore inflicted deprivations upon that person or group in order to keep it

from bringing about the feared event.” Id. at 458-59.

24 ACORN, 618 F.3d at 141 (quoting Selective Serv. Sys. v. Minn. Pub. Interest Research

Grp., 468 U.S. 841, 856 n.15 (1984)) (internal quotation marks omitted).

suspension of the rule of law, nullification of rights, disposition of claims,

and infliction of multiple, retaliatory punishments. It is the ultimate

betrayal by one’s own country when juridical evil is allowed to triumph

over truth and fairness.

We the people are the rightful masters of both Congress and the

courts, not to overthrow the Constitution but to overthrow the

men who pervert the Constitution.

—Abraham Lincoln

ARGUMENT

Courts are bound by jus cogens norms and obligations erga omnes,25

which are peremptory norms from which no derogation is permitted. The

Constitution protects jus cogen rights to meaningful access to the courts to

25 Any restriction on access to the courts violates due process and basic values “implicit in the

concept of ordered liberty.” Palko v. Connecticut, 302 U.S. 319, 325 (1937). Processes that

rely upon judicial self-restraint will inevitably fail because this is a standardless process that

invites abusive discrimination and suppression of rights. The Ninth and Tenth Amendments

are not meaningless or irrelevant surplusage in the bill of rights. Marbury v. Madison, 1

Cranch 137, 174 (1803). In interpreting the Constitution, “real effect should be given to all

the words it uses.” Myers v. United States, 272 U.S. 52, 151 (1926). The Ninth and Tenth

Amendments recognize and protect the rights set forth in Article I of the Texas Constitution.

Since these rights existed at the time of the annexation of the Republic of Texas, then, as a

matter of contract, they are protected by the 1st, 4th, 5th, 9th, and 10th Amendments the same

as if they were set forth in the federal bill of rights. No exclusion from the courts was allowed

when the “forever inviolate” rights were established and the self-executing Texas Bill of

Rights was adopted. Yet, no one would have questioned the fundamental right of the people

to vindicate the violation of their rights without a payto-play scheme. Since the rights

enumerated in the Texas Bill of Rights were not ever delegated, attorneys cannot abrogate or

violate those rights under any circumstance. Partnership attorneys have no authority to

limit, ration, restrict, or revoke rights. Griswold v. Connecticut, 381 U.S. 479, 484-86 (1965);

United Public Workers v. Mitchell, 330 U.S. 75, 94-95 (1947); Ashwander v. TVA, 297 U.S.

288, 300*11 (1936); Tennessee Electric Power Co., v. TVA, 306 U.S. 118, 143-44 (1939);

Calder v. Bull, 3 U.S. (20 Wall.) 386, 388 (1789) (Chase, J.); Loan Ass’n v. Topeka, 87 U.S. (20

Wall.) 655, 662-63 (1875) (Miller, J.); Richmond Newspapers v. Virginia, 448 U.S. 555, 579-80

& n. 15 (1980) (Burger, J. plurality op.); Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v.

Society of Sisters, 268 U.S. 510 (1925); Martin v. Struthers, 319 U.S. 141, 143 (1943);

Wieman v. Updegraff, 344 U.S. 183, 195 (1952); NAACP v. Alabama, 357 U.S. 449, 462

(1958); De Jong v. Oregon, 299 U.S. 353 (1937); Board ofEducation v. Barnette, 319 U.S. 624

(1943); J. Ely, Democracy and Distrust—A Theory of Judicial Review (Cambridge^ 1980), 3441; C. Black, Decision According to Law (New York- 1981); The Rights Retained by the

People- The History and Meaning of the Ninth Amendment (Randy E. Barnett, ed., 1989).

petition for the redress of grievances and be heard in a fair and impartial

tribunal.26 Imposition of cruel, unusual, excessive, and disproportionate

punishment is prohibited by the Fourth, Fifth, and Eighth Amendments. The

right to be free from punishment imposed in a retroactive, ex post facto

manner with bills of pains and penalties or bills of attainder is prohibited by

U.S. Const., Art. 1, § 9, Cl. 3. Pursuant to the protections afforded by the

Ninth and Tenth Amendments, the “forever inviolate” rights of the Texas

Constitution entitles the women of Texas to open courts, jury trial, the due

course of law, equal rights, protection from cruelty, and freedom from

outlawry.27 This republic owes a fiduciary duty to fulfill its erga omnes

obligations.

26 The courts must "assure the indigent an adequate opportunity to present his claims fairly."

Ross v. Moffitt, 417 U.S. 600, 616 (1974). "[M]eaningful access," to the courts is the

touchstone. See id. at 417 U. S. 611, 612, 615. The Supreme Court has stated that “the cost

of protecting a constitutional right cannot justify its total denial.” Bounds v. Smith, 430 U.S.

817, 825, 828 (1977); Bonner v. City of Prichard, 661 F.2d 1206, 1212 (llth Cir. 1981); Cruz v.

Hauck, 475 F.2d 475, 476 (5th Cir. 1973). Id. at 1130. Although the right is particularly

crucial to prisoners, the right is fundamental to all persons, whether incarcerated or free.

Classifications impinging on the right must be closely related to the promotion of a

compelling state interest. See Wolff v. McDonnell, 418 U.S. 539, 555, 579 (1974); Johnson v.

Avery, 393 U.S. 483, 485 (1969); Fay v. Noia, 372 U.S. 391, 402 (1963); see also Brown v.

Allen, 344 U.S. 443, 502 (1953) (Frankfurter, J., concurring); Griffith v. Wainwright, 772

F.2d 822, 825 (llth Cir. 1985); Merritt v. Faulkner, 697 F.2d 761, 763 (7th Cir.) cert, denied,

464 U.S. 986 (1983) ("when rights of a constitutional dimension are at stake, a poor person's

access to the federal courts must not be turned into an exercise in futility"); United States ex

rel. Marcial v. Fay, 247 F.2d 662, 669 (2d Cir. 1957)(en banc) cert, denied, 355 U.S. 915

(1958) "([w]e must not play fast and loose with basic constitutional rights in the interest of

administrative efficiency"). See Wolff, 418 U.S. at 579; Cruz v. Beto, 405 U.S. 319, 321 (1972);

Johnson v. Anderson, 370 F. Supp. 1373, 1383 (D. Del. 1974).

27 The Constitutions have preempted the field when it comes to rights retained by and

reserved to the people. No federal statute or rule existed when the 9th and 10th amendments

were ratified. Courts cannot take vague and indeterminate language in a subsequent act of

Congress and apply it in an overly broad manner to nullify the Texas Bill of Rights, or

suspend statutory and common law, or restrict claims through a misinterpretation or

misapplication of the statute. Since the Court must interpret statutes under the presumption

that Congress intended compliance with Constitutional mandates, federal statutes and rules

Certainly all those who have framed written constitutions

contemplate them as forming the fundamental and paramount law

of the nation, and consequently the theory of every such

government must be, that an act of the legislature, repugnant to

the constitution, is void.

—Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).

Whether it violates due process to ignore a Motion to Recuse and apply the

wrong standard ofreview.

Due Process entitles all litigants to objective impartiality from the

judiciary. 28 Petitioner was entitled to a fair-minded judge with the

unquestioned appearance of fairness.29

Courts possess no discretion to ignore a sworn motion that was filed

pursuant to 28 U.S.C. §§ 144 and 245.30 Parties cannot be forced to forfeit all

rights and endure the indignities of a biased or hostile court, but may

condition the presentment of claims on the constitutional prerequisite of a

fair forum.31 Under 28 U.S.C. § 144, abstention and referral are mandatory

must be read in the historical context of the 9th and 10th amendments and the Texas

Constitution, as well as the exiting framework of the due course of law.

28 Petitioner “must be granted an opportunity to present [her] claims to a court unburdened

by any “possible temptation .. . not to hold the balance nice, clear and true between the State

and the accused,” Turney v. Ohio, 273 U. S. 510 (1927). See 28 U.S.C.A. § 455 (2016); 28

U.S.C.A. § 144 (2016); and MODEL CODE OF JUDICIAL CONDUCT Canon 3(C) (AM. BAR

ASS'N 2011). See RICHARD E. FLAMM, JUDICIAL DISQUALIFICATION: RECUSAL AND

DISQUALIFICATION OF JUDGES § 1.4 at 9 (2d ed. 2007) (detailing expansions of grounds

for recusal under federal statute and discussing their significance); see also Charles Geyh,

Myles Lynk, Robert S. Peck & Hon. Toni Clark, The State of Recusal Reform, 18 N.Y.U. J.

LEGIS. & PUB. POLT 515, 517 (2015). Cf. CHARLES GARDNER GEYH, FED. JUDICIAL

CTR., JUDICIAL DISQUALIFICATION: AN ANALYSIS OF FEDERAL LAW 12-13 (2d ed.

2010) (discussing the so-called duty to sit as it relates to judges’ obligations to recuse

themselves).

29 Caperton v. A.T. Massey Coal Company, Inc., 129 S. Ct. 2252 (2009) (“The failure to

consider objective standards requiring recusal is not consistent with the imperatives of due

process” when there is a “serious risk of actual bias based on objective and reasonable

perceptions”).

30 See ROA.591-607.

31 See ROA.51. Paragraph IV on page 40 of the original complaint.

because the words “shall proceed no further” removes all discretion.32 With

this safeguard, Congress provided protection from the cognitive priming,

cognitive bias, confirmation bias, cognitive dissonance, and other prejudicial

proclivities or abuses of authority by men who occupy positions of power. ML

and ELY were not neutral and detached.33 Pre-existing conditions lessened

the likelihood that these men would be sensitive to the institutional interests

that compel the courts to maintain the appearance of impropriety.34 The

motion should have been referred to a neutral and detached arbiter.35

Madison spoke precisely to the point32 “Whenever a party to any proceeding in a district court makes and files a timely and

sufficient affidavit that the judge before whom the matter is pending has a personal bias or

prejudice either against him or in favor of any adverse party, such judge shall proceed no

further therein, but another judge shall be assigned to hear such proceeding.” 28 U.S.C. §

144.

33 See Windsor v. McVeigh, 93 U.S. 274 (1876); In re Murchison, 349 U. S. 133, 136 (1955)

CtOlur system of law has always endeavored to prevent even the probability of unfairness. To

this end no man can he a judge in his own case and no man is permitted to try cases where

he has an interest in the outcome.’); Spencerv. Lapsley, 20 How. 264, 266 (1858) (recognizing

statute accords with this maxim); see also Publius Syrus, Moral Sayings 51 (D. Lyman

transl. 1856) (‘No one should be judge in his own cause.’); B. Pascal, Thoughts, Letters and

Opuscules 182 (O. Wight transl. 1859) (‘It is not permitted to the most equitable of men to be

a judge in his own cause.’); 1 W. Blackstone, Commentaries *91! Martinez v. Lamagno, 515

U.S. 417, 428-29 (1995).

34 The Guide to Judiciary Policy provides numerous advisory opinions addressing judicial

conduct in an effort to avoid even the slightest perception ofbias or impropriety. See Federal

Judicial Center, Judicial Disqualification: An Analysis of Federal Law (2d. ed.) at pp. 26‘37.

See 28 U.S.C. § 144. A judge shall disqualify himself in a proceeding in which the judge’s

impartiality might reasonably be questioned, including but not limited to instances in which:

(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of

disputed evidentiary facts concerning the proceeding. See 28 U.S.C. § 455 (a), (b) (l). The

Code is self-executing. See also, Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009);

Turney v. Ohio, 273 U.S. 510 (1927).

35 An unconstitutional failure to recuse constitutes structural error that is “not amenable” to

harmless-error review. Wilhams v. Pennsylvania, 136 S. Ct. 1899, 1905 (2016) (“[blias is easy

to attribute to others and difficult to discern in oneself.”); Puckett v. United States, 556 U. S.

129 (2009). See, e.g., Dmitry Bam, Recusal Failure, 18 N.Y.U. J. LEGIS. & PUB. POL*Y 631,

644, available at http://www.nyujlpp.org/wp-content/uploads/2015/ll/Bam-Recusal-Failure18nyujlpp631.pdf. See Charles Gardner Geyh, Why Judicial Disqualification Matters. Again.,

30 REV. OF LIT. 671, 677-8 (2011) (identifying recusal rule in ancient Roman law);

RICHARD

FLAMM,

JUDICIAL DISQUALIFICATION:

RECUSAL AND

"No man is allowed to be a judge in his own cause, because his

interest would certainly bias his judgment, and, not improbably,

corrupt his integrity. With equal, nay with greater reason, a

body of men are unfit to be both judges and parties at the same

time ...The Federalist No. 10, p. 79 (C. Rossiter ed. 1961).

In Lamagno,86 this Court stated*

If Congress made the [judge’s] delegate sole judge, despite the

apparent conflict of interest, then Congress correspondingly

assigned to the federal court only rubber-stamp work. Upon

[reviewing the financial status] in a case such as this one, the

[IFP would be granted, but the case] would automatically [be

recommended for dismissal] ...and, just as automatically, the

[motion to recuse would be mooted and the] case would be

dismissed. The key question presented—[facts supporting the

claims]—however contestable in fact, would receive no judicial

audience. The court could do no more, and no less, than convert

the [magistrate’s] scarcely disinterested decision into a court

judgment. This strange course becomes all the more surreal

when one adds to the scene the absence of an obligation on the

part of the [judge’s] delegate to conduct a fair proceeding,

indeed, any proceeding. [He] need not give the plaintiff an

opportunity to speak to the [factual question], or even notice

that [he] is considering the question. Nor need [he] give any

explanation for [his] action....instructing a court automatically

to enter a judgment pursuant to a decision the court has no

authority to evaluate [or ability to review]. Cf. United States v.

Klein, 80 U.S. 13 Wall. 128, 146 (1872) (Congress may not

“prescribe rules of decision to the Judicial Department of the

government in cases pending before it”). We resist ascribing to

DISQUALIFICATION OF JUDGES § 1.2, at 5 (2d ed. 2007); and Brief for Brennan Center

for Justice at NYU School of Law and Justice at Stake as Amici Curiae Supporting

Petitioner, Williams v. Pennsylvania, 136 S. Ct. 1899 (2016) No. 15*5040, 2015 WL 8138320.'

and see also Brief of the American Bar Association as Amicus Curiae in Support of

Petitioners, Caperton v. A.T. Massey Coal Co., 556 U.S. 868, (2009) (No. 08-22), 2009 WL

45978; Press Release, Justice at Stake, Poll: Huge Majority Wants Firewall Between Judges,

22,

2009),

Justice

(Feb.

Election

Backers,

Stake

http://www.justiceatstake.org/newsroom/press_releases.cfin/poll_huge_majority_wants_firew

aU_between_judges_election_backers?show=news&newsID=5677. See also Menendez,

Matthew and Samuels, Dorothy, Judicial Recusal Reform: Toward Independent

Consideration of Disqualification, Brennan Center for Justice at NYU School of Law,

https://www.brennancenter.org/sites/default/files/201908/Report_Judicial_Recusal_Reform.pdf.

36 Martinez v. Lamagno, 515 U.S. 417, 434 (1995).

Congress an intention to place courts in this untenable position.”

Id.

Factual findings must be based on evidence and reduced to writing, Written

decisions are particularly important in the context of recusal.37 An incomplete

record is misleading because without a full development of the facts, courts

lack the evidence necessary for a reasoned decision. ELY and ML

circumvented the motion and deprived Petitioner of an evidentiary hearing to

sanitize the record.38 This abuse frustrates Congressional intent to protect

the IFP and renders this Court impotent and incapable of fulfilling its

fiduciary duty to protect human rights.39 In the absence of any evidence, ELY

merely concludes that the motion to recuse was “solely for the purpose of

delay...frivolous...without merit.” ELY is duplicitous to accuse Petitioner of

filing a motion “solely for the purpose of delay” when the process the court

37 Transparent, reasoned, written decisions—or at the very least, decisions with reasons

committed to record—preserve judicial legitimacy, by requiring officials to give public

reasons for their actions. They also encourage judges to fully engage with the reasons offered

in support of the recusal request and facilitate the creation of precedent. See SAMPLE,

POZEN & YOUNG, at 32; see also Amanda Frost, Keeping Up Appearances: A ProcessOriented Approach to Judicial Recusal, 53 U. KAN. L. REV. 531, 561-62 (2005). Written,

transparent disposition of recusal methods increase public confidence in the judiciary. ABA

Resol. 105C (2014). See Debra Lyn Bassett, Three Reasons Why, (reviewing studies of bias

and arguing that independent review of recusal motions can mitigate unconscious bias).

Requiring written findings of feet to support recusal decisions are in accord with the ABA’s 2014

Resolution 105(C), which calls upon courts to adopt recusal procedures that “are transparent.” “Nor should

a litigant or counsel have to guess at the process by which a decision on a motion to disqualify is

considered. Transparency is both an end itself and a means by which fairness and efficiency is promoted. It

assures that reviewable reasons are expressed on the recusal decision.” JUDICIAL DIV., ABA, REPORT

(2014),

available

RESOLUTION

105C,

http://www.americanbar.org/content/dam/aba/administrative/house_of_delegates/resolutions/2014_hod_an

nualme eting_105c.authcheckdam.pdf.

38 ELY met the criteria in subparagraphs (a) and (b) (l) of 28 U.S.C. § 455. These juridical

attorneys have a personal stake in concealing the corruption in Williamson County, and a

clear motive to engage in self-vindication of their prior politically-motivated conduct of aiding

and abetting.

39 See Gutierrez de Martinez v. DEA 111 F.3d 1148, 1155 (4th Cir. 1997); Jamison v. Wiley,

14 F.3d 222 (4th Cir. 1994).

designed allows an injunction for an indefinite term without any semblance

of due process solely to cause delay and create the mere appearance of justice.

The hearing on the motion would have caused far less delay than the nine

months the magistrate took to determine the IFPAQ

No objective person would have any confidence in the “determination”

of the claims and imposition of punishment. An arbiter of the law who takes

on an accusatorial and adversarial role loses neutrality and detachment.41

Any objective person knowing all the facts and history of these claims might

reasonably question or harbor reasonable doubts as to the objectivity and

impartiality of ELY, and conclude that his and ML’s continued participation

creates an unconstitutional probability or risk of bias too high to be

constitutionally tolerable.42

On appeal, the same prejudicial animosity prevents a fair and

impartial de novo review. The Panel failed to apply the proper standard of

40 When people enter the courts seeking relief, unreasonable delays and indefinite

injunctions deprive them of irretrievable rights causing irreparable harm. The ministerial

duty to determine financial status should not take more than nine months to perform.

41 When a tribunal performs an act of consequence that Congress has not authorized,

reversal on appeal is the appropriate course. See Rivera v. Illinois, 556 U.S. 148, 161 (2009);

Nguyen v. United States, 539 U.S. 69 (2003). The statutory provision in question “embodies a

strong policy concerning the proper administration of judicial business.” Id. at 78 (citing

Glidden Co. v. Zdanok, 370 U.S. 530, 536 (1962)). See also, Wingo v. Wedding, 418 U.S. 461

(1974).

42 Rippo v. Baker, 580 US _, 137 S.Ct. 905 (2017) (“Recusal is required when, objectively

speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high

to be constitutionally tolerable.'” Caperton v. A. T. Massey Coal Co., 556 U. S. 868 (2009). A

constitutionally intolerable probability of bias exists when the same person serves as both

accuser and adjudicator in a case. See In re Murchison, 349 U. S. 133 —137 (1955). A

multimember court must not have its guarantee of neutrality undermined, for the

appearance of bias demeans the reputation and integrity not just of one jurist, but of the

larger institution of which he is a part. Williams v. Pennsylvania, 136 S. Ct. 1899, 579 U.S.

_ (2016).

review because 28 U.S.C. § 1915A is applied to an identifiable group to deny

them equal access to the courts and rights protected by the First

Amendment. “Abuse of discretion” is the wrong standard of review when

attorneys have no discretion to violate protected rights with discriminatory

impact.43 Abuses that trespass upon rights, usurp legislative and executive

duties, and fall outside lawful parameters, are not exercises of discretion.

Courts use indeterminate terms, such as “great deference,” “broad

discretion,”

and

“presumption”

of legality

whitewash

systemic

discrimination. Pure questions of law concerning authority under the

Constitutions, FMA, determination of “constitutional fact,” and dismissals

with prejudice are reviewed de novo.44 When attorneys abuse the courts,

violate the separation of powers, deny equal access to courts, deprive the

people of due process, ignore the prohibition against bills of attainder, and

impose sua sponte or suo motu punishment for life with permanent

disfranchisement and irreversible nullification of rights under juridical bills

43 Thompson v. Whitman, 85 U.S. 457 (1873) (“no government, if it desires extraterritorial

recognition of its acts, can violate those rights which are universally esteemed fundamental

and essential to society.” Id. at 469); Vallely v. Northern Fire & Marine Ins. Co., 254 U.S.

348, 41 S.Ct. 116 (1920) (citing Elliott v. Lessee of Piersol, 1 Pet. 328, 26 U.S. 328 (1828)

(“Courts are constituted by authority, and they cannot go beyond the power delegated to

them. If they act beyond that authority, and certainly in contravention of it, their judgments

and orders are regarded as nullities. They are not voidable, but simply void, and this even

prior to reversal.” Id. at 353‘54); and Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8

(1907)).

44 Coalition for the Abolition ofMarijuana v. City ofAtlanta, 219 F.3d 1301, 1316 (llth Cir.

2000); Horton v. Rehance Standard Life Ins. Co., 141 F.3d 1038, 1040 (llth Cir. 1998); Biggs

v. Meadows, 66 F.3d 56, 59 (4th Cir. 1995). “A matter requiring statutory interpretation is a

question of law requiring de novo review.” United States v. Brown, 639 F.3d 735, 737 (6th

Cir. 2011) (quoting United States v. Batti, 631 F.3d 371, 375 (6th Cir. 2011)). See Johnson v.

State, — So. 3d —, 2012 WL 16692 at *5 (Fla. Jan. 5, 2012) ("pure questions of law subject to

de novo review").

of pains and penalties, the review is de novo with strict scrutiny. In assessing

the constitutionality of a statute, or a systemic juridical practice nullifying

human rights by conflating and misinterpreting or misapplying vague,

indeterminate, and standardless terms, or an institutionalized pattern of

juridical acts mechanically imposing punishment with a “vexatious” litigant

label, which permanently infringes upon First Amendment rights, impairs

the right to petition, and punishes religious, economic, and other expressive

freedoms, the proper standard of review is de novo with “strict scrutiny”45

and the policy and practice “must be viewed in the light of less drastic means

for achieving the same basic purpose.”46

45 Skinner v. Oklahoma, 316 U.S. 535, 541, (1942). Review of misinterpretation and

misapplication of a statute to frustrate or repeal its intent is de novo. Bazrowx v. Scott, 136

F.2d 1053 (5th Cir. 1998)(dismissal is "viewed with disfavor" and is reviewed de novo—citing

Lowrey v. Texas A & M Univ. Sys., 117 F.3d 242, 246-47 (5th Cir. 1997) (citation and internal

quotation omitted)). A summary judgment is reviewed de novo. McFaul v. Valenzuela, 684

F.3d 564, 57l(5th Cir. 2012).

46 Shelton v. Tucker, 364 U.S. 479, 488 (i960); Bates v. Little Rock, 361 U.S. 516, 524 (1960).

See also McLaughlin v. Florida, 379 U.S. 184 (1964); Zemel v. Rusk, 381 U.S. 1, 503-504

(1965).

Whether the extended preemptive “review” or “screening” process and

summary disposal ofclaims is a delegated authority within the Constitution,

or Required” by statute, or authorized by law1 or whether it is merely a

judicial subterfuge to discriminate against a targeted group of litigants or

class of claims in violation of the United States Constitution and laws of this

Republic?

IFP is the codification of a common law right.47 No authority was

delegated to the republic to obstruct access to the courts. Neither Congress

nor the Courts are free to design a substitute barrier to achieve the same

result and preemptively bar entrance with discriminatory impact.48 If it is

not delegated in the Constitution, it cannot be taken by judicial expansion.

Absent authority, there can be no exercise of discretion.49 The right to access

the courts is not a license, franchise, or privilege! does not require payment or

gatekeeper permission! and cannot be blocked or entry punished.

47 The Magna Carta first recognized the concept that indigents should not be barred from

seeking justice. The Magna Carter states^ "To no one will we sell, to no one will we deny or

delay right or justice." MAGNA CARTA § 40, quoted in Catz & Guyer, 31 RUTGERS L. REV.

at 656 (quoting J.C. Holt trans. 1965); Catz & Guyer, 31 RUTGERS L. REV. at 656 (citing 11

Hen. 7, ch. 12 (1494)). See Neitzke v. Williams, 490 U.S. 319, 324 (1989) (“The federal in

forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is

designed to ensure that indigent litigants have meaningful access to the federal courts.

Adkins v. E. I DuPont de Nemours Co., 335 U.S. 331, 342-343 (1948).”),' Coppedge v. United

States, 369 U.S. 438, 447 (1962); see also H.R. Rep. No. 1079, 52d Cong., 1st Sess., 1

(1892).”). “Congress justifiably enacted § 1915 to allow indigent persons access to the courts

so that their rights may be vindicated.” Cay v. Estelle, 789 F.2d 318, 324 (5th Cir. 1986).

48 The imposition of financial harriers restricting access to courts has no place in our heritage

of Equal Justice Under Law. Bums v. Ohio, 360 U.S. 252, 257-258 (1959).

49 See Ex Parte Young, 209 U.S. 1234, 159-60 (1908). When a federal officer acts outside his

lawfully delegated authority, by intentionally violating a jus cogens norm, the conduct falls

outside lawfully delegated authority. Cf. Nasuti v. Scannell, 906 F.2d 802, 807 n.10 (1st Cir.

1990) (quoting and citing H.R. Rep. No. 100-700 at 5, reprinted in 1988 U.S.C.C.A.N. 5945,

5949).

Judges are bound by oath to protect the people and their rights

equally; whether rich or poor, and to faithfully and impartially discharge and

perform all duties incumbent upon them under the Constitution and laws of

the United States. Wealth or poverty should play no role or influence in

determining who is allowed access. Determinations of wealth or poverty

should not be used as a pretense to dispose of claims or as an artifice to

repeal or restrict unfavorable claims or causes of action.50 A fair and

impartial tribunal is one that hears before it condemns, and ensures that

claims are heard on the merits. No federal statute or rule can work a

constitutional injury to a citizen without due process.51 The partnership

cannot remove the traditional avenue to petition by deeming claims frivolous.

By lobbying for the PLRA with skewed, histrionic, and inflammatory

anecdotal reports, attorneys pushed through their own form of “tort reform”

with a nullification of civil rights unburdened by the national conscience.52

5° "The liberties ofnone are safe unless the liberties ofall are protected.William O. Douglas

51 U.S. Const, amends. I, IV, V, VII, VIII, IX, and X; Tex. Const. Art. I, §§ 3, 3a, 8, 9, 10, 11,

12, 13, 14, 15,15a, 16, 19, 20, 23, 25, 26, 27, 28, and 29. See also Universal Declaration of

Human Rights, G.A. Res. 217A, at art. 8, U.N. GAOR, 3d sess., 1st plen. mtg., U.N. Doc.

A/810 (Dec. 12, 1948) ("Everyone has the right to an effective remedy by the competent

national tribunals for acts violating the fundamental rights granted him by the

[Clonstitution or by law."); International Covenant on Civil and Political Rights, G.A. Res.

2200A (XXI), at art. 2, U.N. Doc. A/6316 (Dec. 16, 1966); International Convention on the

Elimination of All Forms of Discrimination, GA. Res. 2106, at art. 6, U.N. Doc. A/6014 (Dec.

12, 1965) ("State Parties shall assure to everyone within their jurisdiction effective protection

and remedies, through the competent national tribunals and other State institutions....");

American Convention on Human Rights art. 25(l), July 18, 1978, 1144 U.N.T.S. 128

("Everyone has the right to simple and prompt recourse ... to a competent court or tribunal

for protection against acts that violate his fundamental rights recognized by the constitution

or laws of the state concerned or by this Convention, even though such violation[s] may have

been committed by persons acting in the course of their official duties.").

52 People are “entitled” by the Creator to certain fundamental and inalienable rights and

they agreed to form a government that “shall” provide protection for these human rights.

During the PLRA amendments, § 1915 was rendered vague, indeterminate,

and confusing because it invites the conflation of two conflicting statutory

intentions—the protective intent to allow equal access for paupers with the

punitive and restrictive intent to screen prisoner litigation.53 Improper

conflation of two conflicting intents with indeterminate terms negates the

stated intent of IFP and allows attorneys to suspend and nullify unalienable

rights. This unintended, unconstitutional, discriminatory, and disfranchising

result renders the Supremacy Clause meaningless.54

When the literal application of a statute will produce a result that is

demonstrably at odds with the intentions of the drafters, the intent

controls.55 As Judge Learned Hand explained, “statutes should be construed

with some imagination of the purposes which lie behind them.” LeHigh

Valley Coal Co. v. Yensavage, 218 F. 547, 552 (2d Cir. 1914). The “purpose

Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir. 2005) (en banc)', United States v.

White Mountain Apache Tribe, 537 U.S. 465, 473 (2003).

53 Cantwell v. Connecticut, 310 U.S. 296, 308 (1940); Musser v. Utah, 333 U.S. 95, 97 (1948).

“The vagueness may be from uncertainty in regard to persons within the scope of the act. . .

or in regard to the applicable tests to ascertain guilt.” Id. at 97,' Winters v. New York, 333

U.S. 507, 515-16 (1948). A statute may be so vague or so threatening to constitutionally

protected activity that it can be pronounced wholly unconstitutional; or “unconstitutional on

its face.” Papachristou v. City ofJacksonville, 405 U.S. 156 (1972); Smith v. Goguen, 415 U.S.

566 (1974). A vague statute that regulates in the area of First Amendment guarantees will

be pronounced wholly void. Winters v. New York, 333 U.S. 507, 509-10 (1948); Thornhill v.

Alabama, 310 U.S. 88 (1940). In FCCv. Fox, 567 U.S.__ , No. 10-1293, slip op. (2012) 613 F.

3d 317 (first case) and 404 Fed. Appx. 530 (second case), vacated and remanded, E.g., United

States v. National Dairy Corp., 372 U.S. 29 (1963). Where the terms of a statute could be

applied both to innocent or protected conduct (such as free speech or petitioning) and

unprotected conduct, but the valuable effects of the law outweigh its potential general harm

when abused, such a statute will be held unconstitutional as applied. Palmer v. City of

Euclid, 402 U.S. 544 (1971); Village ofHoffman Estates v. The Flipside, 455 U.S. 489, 494-95

(1982).

33 U.S. CONST., Art. VI, cl. 2.

55 United States v. Ron Pair Enters., Inc., 489 U.S. 235, 242 (1989). Repeals by implication

are not favored by the courts. Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 442

(1987); Posadas v. National City Bank, 296 U.S. 497, 503 (1936).

surely was not to make the [magistrate] the final arbiter of [the claims].”5*7

Courts must consider the overarching intent of the Constitutions and other

statutes within the framework of the rule of law. By enacting 42 U.S.C. §

1983 in 1871, Congress intended “to give a remedy to parties deprived of

constitutional rights, privileges and immunities by an official’s abuse of his

position.” Id. at 172. “This act is remedial, and in aid of the preservation of

human liberty and human rights....such statutes and constitutional

provisions...are meant to protect and defend and give remedies for their

wrongs to all the people.” CONG. GLOBE, 42ND CONG., 1ST SESS. APP’X

68 (1871); see also id. at 217 (remarks of Sen. Thurman) (“there is no

limitation whatsoever upon the terms that are employed, and they are as

comprehensive as can be used”); CONG. GLOBE, 42ND CONG., 1ST SESS.

800 (remarks of Rep. Perry) (“we have asserted as fully as we can assert the

mischief intended to be remedied.”); id. at 476 (remarks of Rep. Dawes) (the

person who “invades, trenches upon, or impairs one iota or tittle of the least

of [constitutional rights], to that extent trenches upon the Constitution and

laws of the United States, and this Constitution authorizes us to bring him

before the courts to answer therefor”). Insulating willful interlopers with

weaponized immunity defeats the purpose of the bill of rights. “To what

purpose are powers limited, and to what purpose is that limitation committed

56 Martinez v. Lamagno, 515 U.S. 417, 425 (1995).

to writing, if these limits may, at any time, be passed by those intended to be

restrained?”57

Courts owe a duty to hear and determine a petition to vindicate the

violation of rights, see Davis v. Passman, 442 U.S. 228 (1979); Carlson v.

Green, 446 U.S. 14 (1980), and that duty “is not lightly to be set aside.”58 It

rests with the judiciary to insure that pro se claims of constitutional

significance are afforded an adequate hearing so that justice is done.59

Abrogation of cognate rights on an ad hoc basis by screening cases pre-suit

effectively suspends the law for the targeted group.60 “[Biabeas corpus and

civil rights actions are of ‘fundamental importance ... in our constitutional

scheme’ because they directly protect our most valued rights.”61 Courts must

protect unfettered access to present claims against the government with the

same criteria used for habeas corpus.62 The preemptive policy and retaliatory

ritual removes all effective means for ensuring "a reasonably adequate

57 See, e.g., Mugler v. Kansas, 123 U.S. 623, 661, 8 S. Ct. 273, 31 L. Ed. 205 (I887)(citing

Marbury v. Madison, 5 U.S. 137, 176, 1 Cranch 137, 2 L. Ed. 60 (1803). See also Owen v. City

ofIndependence, 445 U.S. 622, 651 (1980)

58 United States v. Fausto, 484 U.S. 439, 455 (1988) (Blackman, J., concurring).

59 Joseph M. McLaughlin, An Extension of the Right ofAccess-' The Pro Se Litigant's Right to

Notification of the Requirements of the Summary Judgment Rule, 55 Fordham L. Rev. 1109,

1128 (1987). See Burris v. State Department of Public Welfare of S. C., 491 F.2d 762 (4 Cir.

1974), Canty v. City of Richmond, Va., Police Dept., 383 F.Supp. 1396 (E.D.Va.1974),

affirmed, 526 F.2d 587 (4 Cir. 1975), cert, denied, 423 U.S. 1062, 96 S.Ct. 802, 46 L.Ed.2d

654 (1976).” Gordon v. Leeke, 574 F.2d 1147 (4th Cir. 1978).

60 Neitzke v. Williams, 490 U.S. 319, 330 (1989) (“Given Congress' goal of putting indigent

plaintiffs on a similar footing with paying plaintiffs, petitioners' interpretation cannot

reasonably be sustained. See Hainesv. Kemer, 404 U.S. 519, 520 (1972)”).

si Bounds v. Smith, 430 U.S. 817, 827 (1977); Johnson v. Avery, 393 U.S. 483, 485 (1969);

Wolff v. McDonnell, 418 U.S. 539, 579 (1974) ("It is futile to contend that the Civil Rights Act

of 1871 has less importance in our constitutional scheme than does the Great Writ.").

62 Ex parte Hull, 312 U. S. 546, 549 (1941); Johnson v. Avery, 393 U. S. 483 (1969); Wolff v.

McDonnell, 418 U. S. 539, 577- 580 (1974); Ross v. Moffitt, 417 U.S. 600, 616 (1974).

opportunity to present claimed violations of fundamental constitutional

rights.”63

The overly broad interpretation or disfranchising application of a

vague and indeterminate statute violates the separation of powers because

courts use the ministerial practice of assessing financial status to roll into

oppression under a feigned pretense that they are “required” to conduct a

“gatekeeper” merit-based review under 28 U.S.C. § 1915 (e) (2) (B) akin to §

1915A 64 “Review” designed to curtail a perceived threat from those already

under punishment of the law, is enlisted to fold a blanket of governmental

protection around official oppressors to disfranchise the vast majority of

Americans, which the very laws being suspended were intended to protect.65

Intended beneficiaries are stripped of their reasonable expectations,66 which

is “a palpable invasion of rights secured by the fundamental law.”67 Marbury

63 Bounds v. Smith, 430 U.S. 817, 825 (1977). See also Bums v. Ohio, 360 U. S. 252, 360 U.

S. 257 (1959); Smith v. Bennett, 365 U. S. 708 (1961); Griffin v. Illinois, 351 U. S. 12, 20

(1956).

64 The courts attract and harbor men who are “disposed to usurp” and they have created “a

plausible pretence for claiming that power.” See The Federalist, No. 84 (Cooke ed. 1961) at

578-579 (A. Hamilton). The Ninth and Tenth Amendments were intended to curtail these

usurpers of power. See Redlich, Are There “Certain Rights...Retained by the People”? 37

N.Y.U.L. Rev. 787 (1962); Kelsey, The Ninth Amendment of the Federal Constitution, 11 Ind.

L. J. 309 (1936). Courts owe a fiduciary duty to push back against usurpers and interlopers.

65 By shoving all “pro se? and paupers into the same category as prisoners, authoritarian

oppressors can achieve the totalitarian control which the bill of rights has historically

prevented.

66 The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (“an act of Congress ought never to

be construed to violate the law of nations if any other possible construction remains”); see

also F. Hoffinan-LaRoche Ltd. v. Empagran S.A., 542 U.S. 155, 166 (2004); McCulloch v.

Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21 (1963).

67 See Meyer v. Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 67 L. Ed. 1042 (1923); Lawton v.

Steele, 152 U.S. 133, 137, 14 S. Ct. 499, 38 L. Ed. 385 (1894); Missouri, Kan. & Tex. R. Co. v.

Rockwall County Levee Improvement Dist. No. 3, 117 Tex. 34, 297 S.W. 206, 212 (1927);

Houston & Tex. Cent. R.R. Co. v. City of Dallas, 98 Tex. 396, 84 S.W. 648, 653-54 (1905); City

of Coleman v. Rhone, 222 S.W.2d 646, 650 (Tex.Civ.App.-Eastland 1949, writ ref d).

v. Madison, 5 U.S. (l Cranch) 137 (1803). “The very essence of civil liberty

certainly consists in the right of every individual to claim the protection of

the laws whenever he receives an injury.” Id. at 162. The systemic

nullification of that legal right is an injury-in-fact.68 It is an abuse of process

under 28 U.S.C. § 1915 (e) (2) (B) to require a pre-suit review of allZRPunder

28 U.S.C. § 1915A. The improper conflation nullifies 28 U.S.C. § 1915(d), and

renders § 1915A meaningless if pre-suit review is already required under

§1915(e) (2) (B).69 By conflating the “required review” under §1915A into

every IFPmotion, attorneys exploit the opportunity as a means to deprive the

bete noire of due process.70

The adopted practice breaches the obligations erga omnes of this

republic.71 A repeal of IFP suo motu in such an arbitrary and capricious

manner, before docketing the case, “would be a breach of faith no less ‘cruel

and astounding’ than to abandon the [free people whom the Constitution] had

promised to maintain in their freedom.” United States v. Klein, 80 U.S. (13

Wall.) 128, 142 (1871). “It was urged in argument that the right to sue the

government...is a matter of favor, but this seems not entirely accurate. It is

68 See Allen v.

Wright, 468 U. S. 737, 751 (1984).

69 Courts ignore the definition of “prisoner” in §

1915A (c). “Pro sS' is a pejorative epithet

used to imply untrustworthy, frivolous, and undesirable. Yet, for the Founding Fathers, this

was the normal way a person entered courts—in one’s own capacity, not through a paid

escort.

70 Attorneys do not allow a case to be docketed until they are prepared to dismiss it. With a

secret objection that produces an automatic strike, attorneys punish undesirables and

exclude claims they disfavor. Neitzke v. Williams, 490 U.S. 319, 320 (1989). “To conflate

these standards would deny indigent plaintiffs the practical protections...which are not

provided when complaints are dismissed sua sponte..."

71 Brower v. Inyo County, 489 U.S. 593 (1989).

as much the duty of the government as of individuals to fulfill its

obligations.” Id.

Congress alone has the authority and duty to constitute and regulate

the inferior courts to ensure and protect the general welfare of the people.72

Article III courts cannot perform executive and legislative functions because

that would violate the constitutional principle of delegata potestas non potest

delegari.™ Abdication, re-delegation, or confiscation of authority is a void act.

Juridical attorneys trample upon the rights reserved by the people by

encroaching upon the powers of Congress.74 Article III tribunals cannot

broaden legislation to usurp and comingle power, impair or nullify rights, and

allow attorneys to seize upon vague terms to constrict, limit, or grab power

from Congress and impair fundamental rights.75

Attorneys capitalize upon vague terms because the intent is to target a

specific identifiable group. There is a special class that is protected and given

special treatment and unfettered access to the courts (those paying the full

price of admission and escorted by attorneys); and there is a clearly

identifiable group that is excluded by placing an impossible burden on

72 U.S. Const, art. I, § 8.

73 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); Wayman v. Southard, 23 U.S. (10

Wheaton) 1 (1825); A.L.A. Schechter Poultry Corp., 295 U.S. 495 (1935); Carter v. Carter

Coal Co., 289 U.S. 238 (1936); J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394, 406,

48 S.Ct. 348, 351 (1928); American Power & Light Co. v. SEC, 329 U.S. 90, 329 U.S. 105

(1946); Mistretta v. United States, 488 U.S. 361 (1989)); John Locke, Second Treatise of Civil

Government (1690).

74 United States v. Klein, 80 U.S. 13 Wall. 128, 146 (1872)

75 Gordon v. United States, 69 U.S. 2 Wall. 561 (1864); Williams v. United States, 289 U.S.

553, 555 (1933). See also Ex parte Bakelite Corp'n,, 279 U.S. 438, 49 S.Ct. 411, 414 (1929);

O’Donoghue v. United States, 289 U.S. 516, 530 (1933); Gordon v. United States, 117 U. S.

697 (1865); Re Sanborn, 148 U. S. 222, 13 S. Ct. 577, 37 L. Ed. 429 (1893); United States v.

Klein, 80 U.S. (13 Wall.) 128, 144*145, 20 L. Ed. 519 (1871).

them.76 The abuse reflects a desire to discourage what privileged men regard

as frivolous, meritless, or vexatious people and their menial claims.77 Claims

are presumed “frivolous,” so they can be preempted and summarily

dismissed. Bills of attainder invite invidious discrimination. In a veiled tactic

to manufacture a pretext to dismiss, attorneys usurp and assume the

legislative, accusatory, enforcement, and judiciary roles to target and exclude

the undesirables. The ritual is inherently subjective and unfettered by the

rule of law.78 Those fitting within the targeted group are moved from

“suspect” to “guilty and punished” all in one private session within a

magistrate’s imagination. The pretense of application of law camouflages

oppression against those most in need of protection, while courts protect

those who most abuse others.

10.

Pre-suit dismissal has a chilling, exclusionary, discriminatory, and

punitive effect when directed towards a marginalized group that is most

likely to suffer the indignity of human rights violations and most in need of

the right to petition. “Depriving someone of an arguable (though not yet

established) claim inflicts actual injury because it deprives him of something

76 Attorneys purport to rely upon the presumed determination of guilt as justification for the

preemptive dismissal and infliction of irreparable injury, but there is never a fair

determination of guilt. Catz & Guyer, Federal In Forma Pauperis Litigation■ In Search of

Judicial Standards, 31 RUTGERS L. REV. 655, 657 (1978) (quoting H.R. REP. No. 1079,

52nd Cong., 1st Sess. (1892)).

77 United States v. Jackson, 390 U. S. 570 (1968); Desist v. United States, 394 U. S. 244, 256

(1969); North Carolina v. Pearce, 395 U. S. 711,

Chaffin v. Stynchcombe, 412 U.S. 17,

26-27 (1973).; Colten v. Kentucky, 407 U. S. 104 (1972).

78 City of Chicago v. Morales, 527 U.S. 41 (1999); Colten v. Kentucky, 407 U.S. 104 (1972).

of value...”79 and attorneys routinely rob the targeted group of arguable

claims for reasons that are not even cogent.80 A fair application of IFP does

not “require” a pre-docketing “review” that goes beyond a determination of

financial status. Raising the bar on what is required of a “pro sF IFP is not

“consonant with Congress’ goal in enacting the IFP of assuring equality of

consideration for all litigants.” Neitzke, 490 at 320. A fair court would

implement a system where the ministerial duty of reviewing financial status

would take a miniscule amount of time and then allow the case to proceed

like any other case. Monroe v. Pape, 365 U.S. 167, 180 (1961).

11.

NeitzkF1 is interpreted as judicial legislation authorizing the policy of

discrimination through a tyranny of labels82 where § 1915A is a bill of

attainder83 layered over the IFP and systematically applied to all prisoners,

paupers, and “pro se.” Conflation and labeling by the judiciary excludes and

™ Lewis v. Casey, 518 U.S. 343, 353 (1996).

so Cofield v. Alabama Pub. Serv. Comm’n, 936 F.2d 512, 515 (llth Cir. 1991).

81 Neitzke v. Williams, 490 U.S. 319 (1989)

82 See Barkett, J., “The Tyranny of Labels” 33 Suffolk Univ. L. Rev. 749 (2005).

83 THE FEDERALIST NO. 44, at 278-79 (James Madison) (Clinton Rossiter ed., 2003) (“Bills

of attainder...are contrary to the first principles of the social compact and to every principle

of sound legislation...The sober people of America are weary of the fluctuating policy which

has directed the public councils.”). Prohibition against attainder protects unpopular

individuals from government excess through a strict separation of powers. See Akhil Reed

Amar, Attainder and Amendment 2-' Romer’s Rightness, 95 MICH. L. REV. 203, 210 (1996))

(“Without the nonattainder principle, the legislature could simply single out its enemies—or

the politically unpopular—and condemn them for who they are, or for what they have done in

the past and can no longer change.”). This is exactly what the Courts have done—they have

convinced Congress that a certain segment of the population is abusing the courts in order to

obtain the ability to punish by attainder, rather than a jury trial with due process. Ad

hominem attacks based on mere ipse dixit, mischaracterization of facts, distortion of

pleadings, and malicious, self-serving speculation are used to demean members of the

targeted group to dismiss their claims outside the protection of the Constitution and rule of

law. They serve as juridical scapegoats and are hounded and driven from the courts, their

voices suppressed and silenced, as they are forced to pay for the crimes of attorneys.

punishes by means having a maximum destructive impact.84 The tyranny of

labels is concealed behind an “abuse of discretion” review that proclaims the

courts are “absolutely certain” that the bete noire “is unable to make any

rational argument in law or fact to support [the] claim for relief’ because the

“facts” are just too incredible. Neitzke, 490 U.S. at 323.

12.

The authority granted to magistrates “is to be construed narrowly.”

U.S. v. Desfr; 257 F.3d 1233, 1236(llth Cir. 2001). The language chosen by

Congress assumes a “pending pretrial matter” or “motion” to be “heard and

determined” and a referral for a fact-finding hearing. The magistrate is not

free to sua sponte raise his own “matters” as an adversary might, and then

“determine” them without a hearing or due process, or to block timely

discovery85 and presentment of claims in a meaningful manner.86 The only

matters pending before the court were an application to proceed IFP and a

84 See dissent by Justice Brennan In re McDonald, 489 U.S. 180, 186-87 (1989).

85 Pro se allowed to conduct discovery in order to more adequately state his claim. Murphy v.

Kellar, 950 F.2d 290 (5th Cir.1992).

86 ML unreasonably obstructed and delayed the case in violation of § 1915 (d) and the

Standing Order of the Court (Appendix B-5), and assumed the role of the judge, opposing

counsel, and accuser operating with no transparency. Petitioner had no notice that ML was

treating her like a prisoner. “A district judge may not designate a magistrate judge to hear

and determine a motion to involuntarily dismiss an action.” Hunt v. Pliler, 384 F.3d 1118,

1123 (9th Cir. 2004); McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). A magistrate

exceeds his authority when he is the one making these oral motions and requests for relief,

and summarily granting them. The R&R was replete with vilification normally flowing from

opposing counsel. When the vilification comes from a magistrate, as if he had conducted a

true adversarial hearing and actually heard and determined pending motions with due

process based upon evidence and testimony, then the judge must decide between two

opponents—his magistrate and the pro se litigant. This posture violates due process and

principles of fundamental fairness. ELY cannot be objective when ML is the accuser,

especially when the pro se filed a motion to recuse.

motion to recuse.87 ML had no authority to preemptively enjoin suit, advance

his own agenda, and ignore § 1915 (d).88 ML deprived Petitioner of the

emergency TRO and fundamental relief under the law. No good faith reason,

just concern, or “pressing need” required the pre*suit injunction and

indefinite stay order.89 The pretense of a referral was not for the purpose of

conducting an evidentiary hearing, but to create the facade of legitimacy.

Facts were dictated, not determined and the § 1915A subterfuge provided a

vehicle to accomplish a fraud on the court.90 The R&R is filled with attacks,

not facts. No defendant or claim was addressed; the focus was solely on

dehumanizing the target. ML’s accusations are conclusionary and designed to

drive the dismissal. He simply started with the desired end result in mind,

pulled 28 U.S.C. § 1915A from the shelves, created the narrative, and invited

87 A judge cannot make a referral if it is “inconsistent with the Constitution and laws” and a

magistrate cannot act without a referral of a pretrial motion. Since Petitioner never agreed

to have a magistrate try any matter, the only proper referral was the IFF

88 Rule 3 {filing of a complaint commences an action); and Rule 4 (service of summons and

complaint within 120 days). The complaint filed by Barnes complied with Rule 8 and the

magistrate violated Rule 1 by enjoining the clerk from issuing and serving summons in the

case. Rule 1 requires that the rules be “construed and administered to secure the just,

speedy, and inexpensive determination of every action and proceeding.” The intent behind

the 1993 Amendments to Rule 1, adding the words “and administered” was to “recognize the

affirmative duty of the court to ensure that civil litigation is resolved not only fairly, but also

without undue cost or delay.” NOTES OF ADVISORY COMMITTEE ON RULES—1993

AMENDMENT for Rule 1. The predominant value is “just.” The courts have ignored “just”

and hyper-focused on “speedy and inexpensive” for the defendants, not for those who have

been injured and harmed.

89 Blocking the action by sua sponte injunction for an indefinite period would violate 28

U.S.C. § 1915(b)(4) and (d). This was not an appropriate exercise of the Court's inherent

power to control its docket. SeeLunde v. Helms, 898 F.2d 1343, 1345 (8th Cir.1990).

90 Fraud on the court "embrace [s] that species of fraud which does, or attempts to, defile the

court itself, or is fraud perpetrated by officers of the court so that the judicial machinery

cannot perform in the usual manner its impartial task of adjudging cases that are presented

for adjudication". Kenner v. C.I.R., 387 F.3d 689(1968). The function of legal process is to

minimize the risk of erroneous decisions. See Mathews v. Eldridge, 424 U. S. 319, 424 U. S.

335 (1976); Speiser v. Randall, 357 U. S. 513, 357 U. S. 525-526 (1958).

the reader to speculate that one of the conditions of that statute would apply

to justify a preemptive dismissal with prejudice. ML used cognitive priming

to inflame the reader with groundless accusations to trigger the cognitive

bias and confirmation bias. In the secrecy of a back office, ML was allowed to

play accuser, prosecutor, grand jury, defense counsel, and judge unfettered by

any traditional features of due process, open courts, or adversarial testing.91

Conclusionary opinions based on nothing more than gossip, rumor, innuendo,

speculation, conjecture, surmise, or some vague “best guess” or dishonest

contrivance by an attorney are mere legal conclusions grounded in no

evidence at all. Anyone can speculate that claims are frivolous before the

testimony and evidence is presented to a jury.92 Interloping attorneys not

only invade the province of the jury, they usurp the jury’s duty and alter

fundamentally “who decides” questions of fact. “Credibility determinations,

the weighing of the evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge.”93 “It is only when witnesses

are present and subject to cross-examination that their credibility and the

weight to be given their testimony can be appraised.”94 A jury determines

mental processes by relying on the cumulative weight of circumstantial

91 By taking on the role of defense counsel and accuser, ML was practicing law. Any federal

magistrate “who engages in the practice of law is guilty of a high misdemeanor.” 18 U.S.C. §

454 (1993). The FMA and § 1915 cannot be used to circumvent this principle.

92 “Even the most dedicated trial judges are bound to overlook meritorious cases without the

benefit of an adversary presentation. Cf. Gardner v. California, 393 U. S. 367, 393 U. S. 369370 (1969). In fact, one of the consolidated cases here was initially dismissed by the same

judge who later ruled for respondents, possibly because Younger v. Gilmore was not cited.”

Bounds v. Smith, 430 U.S. 817, 826 (1977).

93 Anderson v. Liberty Lobby, All U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d (1986).

94 Pollar v. Columbia BroadcastingSys., Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 491 (1962).

evidence since defendants rarely leave a well-marked trail. Motive,

discrimination, conspiracy are quintessential jury functions. Disputes in

these areas raise questions of fact, which cannot be deemed as a matter of

law, but must be resolved by jury after trial. It is duplicitous for ML to claim

to have read the pleadings and also opine that the claims are barred by

immunity95 or are “likely barred by the Rooker-Feldman doctrine.”96 ELY

ignored the sworn, uncontroverted pleadings, accepted as fact the ipse dixit of

ML, and entered a mechanical judgment adopting those “findings” without

any supporting testimony or evidence. There can be no de novo review

without an evidentiary hearing and determination of facts consistent with

due process. “[W]hen a Government official's determination of a fact or

circumstance...is dispositive of a court controversy, federal courts generally

do not hold the determination unreviewable. Instead, federal judges

traditionally proceed from the ‘strong presumption that Congress intends

judicial review.”97 Since dismissal was not in response to a Rule 12 or Rule 56

motion and no record is made, there is no reasonable means to test the

95 See ROA.68-90 paragraphs 21-48 WEAPONIZED IMMUNITY. See also ROA.90-127

paragraphs 49-95 Partnership in Official Lawlessness. See also ROA.127-177 paragraph 1

ADDITIONAL WEAPONS OF THE STATE. See a/so ROA. 123-134 paragraphs 2-12 USE OF

EPITHETS AND MEDIA PROPAGANDA. See also ROA.265-280 paragraphs 42-61

JURIDICAL RACKETEERING WITH WEAPONIZED IMMUNITY, AND CORRUPT

ORGANIZATION OF BRM, MONOPOLY UNION, AND OPPRESSIVE ENFORCEMENT

ARM. See also ROA.454-460 paragraphs 1-7 CONTINUING CONSPIRACY.

96 See ROA.460-485 paragraph 1-25 DECLARATORY JUDGMENT AND PROSPECTIVE

INJUNCTIVE RELIEF. See also ROA.386-437 paragraph 1-61 BREACH OF FIDUCIARY

DUTY AND OATH OF OFFICE, BREACH OF SOCIAL COMPACT AND

CONSTITUTIONAL CONTRACT, COMMON LAW FRAUD, AND FRAUD ON THE

COURTS.

97 Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 670-673 (1986); Abbott

Laboratoriesv. Gardner, 387 U. S. 136, 140 (1967)) (citing cases).

validity of the “factual determinations.” There is no “clear and convincing

evidence” of Congressional intent to nullify the right to petition and suspend

due process by this anomaly of procedure.98 “There is no evidence at all that

members of Congress meant to preclude traditional avenues of judicial relief.”

Abbott Laboratories, 387 U.S. at 142. Chief Justice Marshall captured the

essential idea:

It would excite some surprise if, in a government of laws and of

principle, furnished with a department whose appropriate duty it

is to decide questions of right, not only between individuals, but

between the government and individuals; a ministerial officer

might, at his discretion, issue this powerful process . . . leaving to

[the claimant] no remedy, no appeal to the laws of his country, if he

should believe the claim to be unjust. But this anomaly does not

exist; this imputation cannot be cast on the legislature of the

United States. United States v. Nourse, 34 U.S. 8, 28-29, 9 Pet. 8

(1835).

“Determinations of the fact,” mechanical judgments, and cursory “de novo

reviews” cannot be “properly checked by this Court because the magistrate,

who can scarcely be viewed as disinterested, has the first and final word.”55

In dealing with the bete noire, judges ignore the nullification of rights and

adopt “findings” as if they were derived from an evidentiary hearing. In

revoking the right to petition as if it were a license, ML and ELY impaired

fundamental, structural rights and violated Petitioner’s substantive state law

rights protected by the Texas Constitution and the 9th and 10th Amendments.

98 Rusk v. Cort, 369 U.S. 367, 379-380 (1962).

99 Martinez v. Lamagno, 515 U.S. 417, 426-27, 433-434, 436-37 (1995). There is no support in

the legislative background for such a reading of the [IFP statute]. Abbott Laboratories, 387

U.S. at 145. There is “no persuasive reason for restricting access to the courts or judicial

review is discernible from the statutory fog we confront here.” Martinez v. Lamagno, 515

U.S. 417, 424-25 (1995).

No rule requires Petitioner to marshal evidence within short and concise

pleadings. Petitioner was entitled to a presumption that the sworn facts

stated in the complaint were true. There was no rebuttal; so, those facts

remain unopposed, uncontroverted, and undisputed.100 Petitioner presented a

prima facie case on plausible claims101 and was entitled to a jury trial on the

11 legitimate claims or at least an evidentiary hearing on disputed factual

issues. A neutral and detached magistrate allows discovery and conducts

evidentiary hearings with sworn testimony.102 Courts must not obstruct

justice or frustrate the purpose of discovery and adversarial testing vital to

the protection of fairness. Without an evidentiary hearing, ML and ELY

cannot honestly, ethically, and legitimately conclude with certainty that

Petitioner is unable to make any rational argument to support the claims.103

13.

This systemic abuse of §1915A is a de facto repeal of the IFP statute,

18 U.S.C. § 1963, et seq. (RICO), the Civil Rights Act of 1866 codified and

100 St. Mary’s Honor Ctr., 509 U.S. at 506, 113 S.Ct. 2742; Scaria v. Rubin, 117 F.3d 652, 654

(2d Cir. 1997) (per curiam); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.

1984).

101 Bohannan v. Doe, 527 F. App’x 283 (5th Cir. 2013); Lewis v. Casey, 518 U.S. 343, 356

(1996); See Ulmer v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982). The court must liberally

construe a pro se civil rights complaint. See Moore v. McDonald, 30 F.3d 616, 620 (5th Cir.

1994).

102 "Every person is entitled to an opportunity to be heard in a court of law upon every

question involving his rights or interests, before he is affected by any judicial decision on the

question." “A judgment may not be rendered in violation of constitutional protections.” Earle

v. McVeigh, 91 US 503, 23 L Ed 398 (1875).

103 See, e.g., CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL

COURTS § 68 (6th ed. 2002). As Professor Charles Wright observes, whether a plaintiff is

pro se or represented by counsel, a complaint cannot be dismissed unless it appears to a

certainty that no relief can be granted under any set of facts that can be proved in support of

its allegations. This rule precludes final dismissal for insufficiency of the complaint except in

the extraordinary case in which the pleader makes allegations that show on the face of the

complaint some insuperable bar to relief. Id. at 474 (footnote omitted).

expanded in 42 U.S.C. § 1981, et seq., and a nullification of international

human rights, civil liberties, and common law freedoms for a marginalized

group. The Act is unconstitutionally vague, oppressive, and discriminatory in

every application. Cognitive priming, bias, and confirmation create the

presumption that all facts, claims, causes of action, and appeals filed by IFP

are “frivolous.” Cognitive dissonance continues this practice despite its

assault on the Constitution and its intended beneficiaries. Juridical

subterfuge exempts federal employees and all attorneys from suit; and

punishes the exercise of First Amendment rights without notice, opportunity

to defend, or a jury trial in a retroactive, ex post facto, bill of pains and

penalties fashion; and conceals the violation of the separation of powers by

cloaking

discrimination

discretionary

privilege

and

circumvents

constitutional objections by claiming challenges were made “for the first time

on appeal.”104 Essentially, the adopted artifice permits attorneys to act in

their own self-interests to suspend the bill of rights and repeal disfavored

laws by nullifying erga omnes obligations secured by the Constitution.

Therefore, § 1915A is unconstitutional on its face and as applied under §

1915, and must be struck down. Congress must enact a statute separate from

the IFP that is not a bill of attainder, and must set out specific factual

104 The Panel refused to address critical constitutional challenges by claiming, in a dismissive

footnote 5 on page 4, that these arguments were made “for the first time on appeal.” However,

the challenges were raised, argued, and fully briefed in the trial court. See Original

complaint, (ROA.22-27; ROA.46-177, ROA.411-437, ROA.452-454, ROA.471'483), Rights

Violated (ROA.504-553); Objections to the R&R, (ROA.799-911); and the Notices of Appeal

(ROA.919-972, ROA.975-996).

findings that are required to be supported with evidence in a jury trial and

with due process before the cruel and unusual punishment of outlawry and a

permanent lifetime ban of disfranchisement is imposed.

The very purpose of a Bill of Rights was to withdraw certain

subjects from the vicissitudes of political controversy, to place them

beyond the reach of majorities and officials and to establish them

as legal principles to be applied by the courts. West Virginia State

Board ofEducation v. Barnette, 319 U.S. 624, 638 (1943).

Whether juridical bills of pains and penalties imposed in an ex post facto

manner without due process may be utilized under our Constitution to

retaliate against and punish a person who has done nothing more them

exercise a fundamental right?

The vexatious ban is a juridical bill of pains and penalties, applied ex

post facto, and like § 1915A, imposes punishment without due process or jury

trial in violation of U.S. Const. Art. I, § 9, cl. 3, cl. 4, cl. 8, and § 10; U.S.

Const. Amend. I, IV, V, VII, VIII; Tex. Const. Art. I, §§ 3, 3a, 9, 10, 13, 15, 16,

19, 20, 27, 28, and 29 protected by U.S. Const. Amends. IX and X105 and the

RFRA.106 The § 1915A disposal and retaliatory punishment is achieved by

105 U.S. Const. Art. I, § 9, cl. 3. The interpretation and application of 28 U.S.C. § 1915 (e) (2)

(B) is a bill of attainder and the oppressive infliction of punishment as a “vexatious” litigant

is a juridical bill of attainder, which also violates the 1st, 4th, 5th, 8th, 9th, and 10th

Amendments. U.S. CONST. Art. 1, § 10; TEX. CONST. Art. I, §§ 16, 29. Also, "[n]o conviction

shall work...forfeiture of estate." TEX. CONST. Art. I, § 21. “Attainders, outlawry,

deprivation of property except by due process of law, and the.. .forfeiture of estate, as a result

of conviction of crime, are expressly prohibited by the organic law." Davis v. Laning, 19 S.W.

846, 846 (Tex. 1892).

106 Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb et seq and Chapter 110 TEX.

CIV. PRAC. & REM. CODE. In Sacred Pathways, Gary Thomas sets out nine ways to

worship God. One of those nine recognized ways is as an Activist. “Activists love God through

confronting evil, battling injustice, and working to make the world a better place.” Gary

Thomas, Sacred Pathways (Grand Rapids: Zondervan 2000). See also Rick Warren, The

Purpose Driven Life (Grand Rapids: Zondervan 2002). Barnes has been repeatedly

means that sweep unnecessarily broadly and invade an area of protected

freedoms. Petitioner challenges the constitutionality of these suo motu

juridical bills of pains and penalties.107

The scope of the Bill of Attainder Clause must be assessed in light of

the evils it was designed to prevent—namely, “punishment, of any form or

severity, of specifically designated persons or groups.”108 Historically, “the

Bill of Attainder Clause prohibited any ‘law that legislatively determines

guilt and inflicts punishment upon an identifiable individual without

provision of the protections of a judicial trial.”’109 In Brown, the court held

that statutes, which do “not set forth a generally applicable rule... and leave

to the courts and juries the job of deciding what persons have committed the

specified acts or possess the specified characteristics” were bills of

marginalized, harassed, and retaliated against for her religious beliefs. Barnes had a

fundamental right to earn a livelihood consistent with her deeply held religious beliefs. This

is a protected zone of activity. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 240 (2002).

The Court held that: “First Amendment freedoms are most in danger when the government

seeks to control thought or to justify its laws for that impermissible end. The right to think is

the beginning of freedom, and speech must be protected from the government because speech

is the beginning of thought.” Id. at 253. The right to petition involves the right to think,

speak, and practice religious beliefs. In California Motor Transport Co. v. Trucking

Unlimited, 404 U.S. 508 (1972),. Harsh retaliation chills and eliminates fundamental rights.

Barnes and her children are punished for her religious and socio-political beliefs! and ELY

has steadfastly protected this abuse and retaliation. See Snyder v. Massachusetts, 291 U.S.

97, 105 (1934); Powell v. Alabama, 287 U.S. 45, 67 (1932); Poe v. Ullman, 367 U.S. 497, 517

(1961) ( dissenting op. Douglas, J.); Olmstead v. United States, 277 U.S. 438, 478 (1928)

(dissenting op. Brandeis, J.); Katz v. United States, 389 U.S. 347 (1967).

107 THE FEDERALIST NO. 44, at 278-79 (James Madison) (Clinton Rossiter ed., 2003).

108 See United States v. Brown, 381 U.S. 437, 442 (1965); see also Paul R. Verkuil, Separation

of Powers, the Rule ofLaw and the Idea ofIndependence, 30 WM. & MARYL. REV. 301, 447

(1989) (explaining that the prohibition against legislative punishment...insure[s] that no one

is denied a fair trial” by “prevent[ing] the legislature from serving in two capacities—law

creator and law enforcer”). The attainder is used to dispense with the jury trial and due

process and skip directly to the harshest punishment a court can impose.

109 ACORN v. United States, 618 F.3d 125, 135-36 (2d Cir. 2010) (quoting Selective Serv. Sys.

v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 846-47 (1984)).

attainder.110 If the statute is interpreted and applied to “require” preemptive

review of all complaints filed by paupers, prisoners, and “pro se,” then, this

group has been presumed guilty and singled out for sua sponte summary

disposal by a politicized gatekeeper and subject to the “vexatious”

banishment of outlawry.111 The Brown court made it clear that Congress

“cannot specify the people upon whom the sanction it prescribes is to be

levied,”112 even if there are good policy reasons for the legislation in question.

Congress simply cannot create a class or group of suspects for the purpose of

imposing heightened scrutiny, preemptive exclusion, and punishment. 113

“[T]he fact that a given law or procedure is efficient, convenient, and useful in

facilitating functions of the government, standing alone, will not save it if it

is contrary to the Constitution.”114

With punitive statutes, Congress must “establish minimal guidelines”

to govern the courts.115 With no definitions or standards set by Congress to

no United States v. Brown, 381 U.S. 437, 450 (1965).

111 The courts have shown no overriding justification for the imposition of case-determinative

penalties and bans on court entrance imposed without due process or any process. A

preemptive strike by a gatekeeper would have been unfathomable to the Revolutionary

Congress and is antithetical to this constitutional republic.

112 Id. at 461. Vexatious corporations, PACs, and abusers who pay to play, like Donald J.

Trump, are exempt. Thus, the ban is not directed toward vexatious or frivolous conduct.

113 Consol. Edison Co. ofNY. v. Pataki, 292 F. 3d 338, 350 (2d. Cir. 2002).

114 Paul R. Verkuil, Separation ofPowers, the Rule ofLaw and the Idea ofIndependence, 30

WM. & MARY L. REV. 301, 304 (1989).

115 Kolender v. Lawson, 461 U.S. 352, 358 (1983). Laws regulating persons must give fair

notice of what conduct is required or proscribed, see, e.g., Connally v. General Constr. Co.,

269 U. S. 385, 391 (1926), is essential to the protections provided by the Fifth Amendment’s

Due Process Clause, see United States v. Williams, 553 U. S. 285, 304 (2008), which requires

the invalidation of impermissibly vague laws. Punishment fails to comply with due process if

the statute or regulation under which it is obtained “fails to provide a person of ordinary

intelligence fair notice of what is prohibited, or is so standardless that it authorizes or

encourages seriously discriminatory enforcement.” Ibid. The void for vagueness doctrine

addresses at least two connected but discrete due process concerns: Regulated parties should

inform the public with specificity the conduct proscribed or prohibited,

attorneys usurp the duties of the legislative and executive branches. Even

through Article III delegated no authority to courts to nullify rights, vague

and indeterminate terms like “frivolous,” “malicious,” and “vexatious” are

employed in an overly broad fashion with maximum punitive effect. 116

Inferior courts have no discretion to dispense with protections, suspend the

law, or abuse the IFP statute as a pretense to impose excessive,

disproportionate, cruel and unusual punishment without an opportunity to be

heard, in a fair and impartial hearing, with due process, strict evidentiary

proof, and jury trial.117

know what is required of them so they may act accordingly! and precision and guidance are

necessary so that those enforcing the law do not act in an arbitrary or discriminatory way.

When speech is involved, rigorous adherence to those requirements is necessary to ensure

that ambiguity does not chill protected speech. The practice or policy of punishment through

a sua sponte springing trap does not suffice for the fair notice required when the Government

intends to impose a penalty of disfranchisement or outlawry as punishment for allegedly

impermissible speech or defective petitioning. In exercising a fundamental right, all those

who are labeled prisoner, pauper, “pro se,” or IFP are at the mercy of noblesse oblige in

violation of the due course of law and due process.

116 “Vague laws offend several important values. First, because we assume that man is free to

steer between lawful and unlawful conduct, we insist that laws give the person of ordinary

intelligence a reasonable opportunity to know what is prohibited, so that he may act

accordingly. Vague laws may trap the innocent by not providing fair warnings. Second, if

arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit

standards for those who apply them. A vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for resolution on an ad hoe and subjective basis,

with the attendant dangers of arbitrary and discriminatory applications.” Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972), quoted in Village ofHoffman Estates v. The Flipside,

455 U.S. 489, 498 (1982). A statute prohibiting conduct that is not sufficiently defined is void

for vagueness. See Grayned v. City ofRockford, 408 U.S. 104, 108, 92 S. Ct. 2294, 33 L. Ed.

2d 222 (1972); Comm'n for Lawyer Discipline v. Benton, 980 S.W.2d 425, 437 (Tex.1998).

117 Due process forbids condemnation without a hearing, Pettit v. Penn., La.App., 180 So.2d

66, 69." Black’s Law Dictionary, 6th Edition, page 500. "Due Process of law implies the right

of the person affected thereby to be present before the tribunal which pronounces judgement

upon the question of life, liberty, or property, in its most comprehensive sense! to be heard,

by testimony or otherwise, and to have the right of controverting, by proof, every material

fact which bears on the question of right in the matter involved. If any question of fact or

liability be conclusively presumed against him, this is not due process of law." Black’s Law

ML was cast in the role of accuser and censor. The punishment was

based solely on the mere ipse dixit of one attorney-accuser-adversary-arbiter

bolstered only by speculation and innuendo. Derogatory stereotypes were

used to justify the preemptive suppression of rights and punishment for the

attempted exercise of those rights and Barnes had a bona fide intention to

exercise a constitutional right. Barnes engaged in no conduct that justifies

the preemptive punishment. There is no evidence to support the presumption

that the interest advanced by Barnes’ exercise of her fundamental rights was

insignificant in comparison to some

imagined or judicially-created

inconvenience, annoyance, or alarm.118 With no testimony or evidence to

review, the Article III judges pretend the accusations by the magistrate are

actual facts, conclusions are true, punishment is justified, and branding of

outlawry is deserved.

The ban on unfettered access to the courts is permanent and

irreversible.119 Barnes had property interests stolen, contracts impaired, and

her right to petition was revoked and terminated without due process. This

Dictionary, 6th Edition, page 500. When a court has transcended its jurisdiction, there has

been a departure from established modes of procedure that will render the judgment void.

Courts are not authorized to exert their power in that way. The power underlying judicial

authority must be based on a litigant's fair opportunity to be heard. For jurisdiction is the

right to hear and determine, not to determine without hearing. And where no appearance

was allowed, there could be no hearing or opportunity of being heard, and no exercise of

jurisdiction. By judicial act, Barnes was excluded from its jurisdiction and robbed of rights,

remedies, and recourse.

118 North Carolina v. Pearce, 395 U. S. 711 (1969); Colten v. Kentucky, 407 U.S. 104 (1972).

119 See United States v. Lovett, 325 U.S. 303, 316 (1946); ACORN v. United States, 692 F.

Supp. 2d 260, 270 (E.D.N.Y. 2010). See Pierce v. Carskadon, 83 U.S. (16 Wall.) 234 (1873); Ex

Parte Garland, 71 U.S. (4 Wall.) 333 (1867); Cummings v. Missouri, 71 U.S. (4 Wall.) 277

(1867); Brown, 381 U.S. 437; Comment, The Supreme Court’s Bill ofAttainder Doctrine: A

Need for Clarification, 54 CALIF. L. REV. 212, 218-32 (1966).

retaliation is clearly erroneous because it ignores the lack of proof or

admissible evidence from the accuser and robs the accused of all

constitutional protections. There is an appalling absence of a single example

of “frivolous” claims, or any evidence to show how these claims were “without

merit,” or any specific, identifiable conduct by Barnes that justifies the

retaliatory penalty of “dismissal with prejudice” and the “vexatious” labeling,

disfranchising stigma, and permanent banishment.120 Aside from the current

case filed in 2018, there is only one priorca.se, filed in 2012, where Petitioner

sought to proceed IFP. Petitioner’s status as a “pauper” and “pro sd’ was the

direct and proximate result of the criminal conspiracy. In both cases, rights

protected by the First Amendment were obliterated in the same brutal

summary fashion under an abusive application of § 1915A even though

Petitioner was not a “prisoner.” The prior preemptive dismissal in 2013 was

used as “evidence” of a “pattern of fifing frivolous lawsuits in this Court” to

justify a lifetime ban of disfranchisement—even though there was no finding

that the claims were “frivolous” at the time. Punishment is imposed with

“alternative facts” and by recasting history in an ex post facto manner. The

bill of pains and penalties only formalizes the de facto infringement of rights,

it does not legitimize it.121

Attaint by fraud, outlawry by edict, and tyranny by stamping the

120 Cf. North Carolina v. Pearce, 395 U. S. 711, 726 (1969).

121 Senator Dick Durbin stated “We believed that first you have the trial, then you have the

hanging. But, unfortunately, when it comes to this [person or group], there has been a

summary execution order issued before the trial.” ACORN v. United States, 692 F. Supp. 2d

260, 274 n. 14 (E.D.N.Y. 2010) (quoting 155 CONG. REC. S10.221 (daily ed. Oct. 7, 2009).

label—“BARRED FILER”—on a resident of Texas is unconstitutional per

se.122 Punishment with permanent disfranchisement and the stigma of

outlawry for doing nothing more than using the courts in the exact manner

for which they were designed and intended to be used is cruel and unusual.

There is no avenue for relief or procedure to lift this permanent infringement

of rights, or remove this indelible ink of “vexatious,” or alleviate this

oppressive lifetime ban. It is disingenuous to claim that a “vexatious” litigant

can still petition if permitted by the court because the court never allowed

“pro sd’ paupers and prisoners to petition before the punitive epithet was

affixed and the ban imposed, so, there is no possibility that the results would

be any different after this disfranchising process is applied and punishment

inflicted. Indeed, it is certain that the discriminatory scrutiny and impossible

hurdles will be much higher and the barrier to the courts will be much more

fortified and protected after the “vexatious” label attaches.123 The burden will

be heavier because the “BARRED FILER” alert is boldly stamped on the

carcass of the civilly dead and prominently posted in public records to invite

attacks by circling vultures, and to preemptively prejudice and predictably

deliver the desired result.

CONCLUSION

122 Tex. Const. Art. I, § 20 specifically protects against outlawry and being placed outside the

protection of the law. The harsh severity of outlawry, which attorneys inflict without due

process or jury trial, is referred to as civil death. Outlawry, or being placed outside the

protection of the law, is a permanent suppression of human rights because attorneys traffic

in the tyranny of labels.

123 See Barkett, J., “The Tyranny of Labels” 33 Suffolk Univ. L. Rev. 749 (2005).

There is a consolidation of political power when § 1915A is grafted into §

;

1915 because Congress made a judgment and presumed guilt against

prisoners based on skewed data from the courts. As a result of the PLRA, §

1915 Was left in such a bastardized, confusing mess that allows

discriminatory impact. The courts now apply the “screening process” to repeal

the IFP statute. There is no separation of powers when attorneys in all three

branches are united and collude to violate the Bill of Rights and target,

marginalize, exclude, and punish paupers, “pro se,” and prisoners. Attorneys

r*.

ration, restrict, reduce, and revoke the people’s human rights as if they were

mere licenses, and retaliate against those who are not escorted by an

attorney when they access their own courts. By subjecting people to

oppressive “review” and imposing the impossible burden of meeting vague,

imprecise, and unarticulated demands, these attorneys summarily punish

»X

lf -

and ban bete noire by negating their right to petition for life. Partnership

attorneys blame and scapegoat marginalized people by presuming they are

filing frivolous and malicious claims. Partnership attorneys are official

censors and oppressors who preemptively exclude, maliciously malign, and

summarily punish the unescorted people as part of a political “tort reform”

movement deceptively packaged as “efficiency” so that prejudice and bullying

is transformed into “maintaining the integrity of the courts.” The Courts are

not free to punish people for exercising a right. Permanent impairment of a

structural right is unconstitutional perse.

APPENDICES

INDEX TO APPENDICES

Appendix A A-l Judgment and Order,' A*2 Fifth Circuit per curiam

panel opinion; and A-3 Order on Motion for Rehearing of the Court of

Appeals for the Fifth Circuit.

Appendix B Bill of Rights U.S. Const. Amends. 1, 4, 5, 7, 8, 9, and 10;

28 U.S.C. § 1915 and 28 U.S.C. § 1915A; 28 U.S.C. § 631, et seq: Fed.

R. Proc. Rule 1, 3, 4, 8; and the Standing Order of the District Courts.

Appendix C Texas Bill of Rights Tex. Const. Art. I, §§ 1, 2, 3, 3a, 9, 10,

13, 16, 19, 20, 26, 28, and 29; and Art. II, § 1. These “forever inviolate”

rights are preserved and protected by the 9th and 10th Amendments to

the United States Constitution.

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Executed on November 20, 2020.

IsL

Carolyn Barnes

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.